July 25, 2008

Wyden Seeks Declassification of FISA Court Opinions

Senator calls opinions key to evaluating federal surveillance law

WASHINGTON, D.C. - In an effort to better inform the ongoing congressional debate on intelligence surveillance law, U.S. Senator Ron Wyden (D-Ore.), a senior member of the Senate Select Committee on Intelligence, sent the below letter today to the Public Interest Declassification Board. The letter asks the Board to review key opinions of the Foreign Intelligence Surveillance Court and determine which portions of these opinions should be declassified and publicly released.

"It is impossible for Congress to evaluate the effectiveness of the nation's surveillance laws without a thorough understanding of how the court is interpreting those laws," said Wyden. "This is exactly the kind of issue that the Public Interest Declassification Board was created to tackle."

The Public Interest Declassification Board (PIDB) was established by the Public Interest Declassification Act of 2000 in order to review and provide recommendations on U.S. classification policy. In 2004 Wyden and a bipartisan group of colleagues from the Senate Intelligence Committee worked to expand the mandate of the board to make it possible for members of Congress to seek an independent review of classification decisions. In 2007, Congress passed legislation clarifying the PIDB's authority to review classification decisions without White House direction. While the board recently produced a lengthy report on many aspects of classification policy, it has never made recommendations related to the classification of specific documents.

"This board has the expertise and the independence necessary to make informed, objective recommendations about when classification is necessary to protect national security and when it is not," said Wyden. "I am pleased that the Board now has the resources and authority that it needs to start considering these requests."

The full text of Senator Wyden's letter is below:

July 25, 2008

Martin Faga
Public Interest Declassification Board
National Archives and Records Administration
700 Pennsylvania Avenue, NW, Room 500
Washington, DC 20408

Dear Mr. Faga:

The recent debate regarding revisions to the Foreign Intelligence Surveillance Act highlights a difficult dilemma. In order to have an informed, constructive debate regarding legislation and public policy, it is important that policymakers and the public have a clear understanding of what current law is, and how it is being interpreted.

In most areas of law, this understanding can be gained through simple research. With regard to the Foreign Intelligence Surveillance Act in particular, however, it can be very difficult for the public - and even many members of Congress - to understand how key provisions of the law are being interpreted, because the opinions of the Foreign Intelligence Surveillance Court are almost invariably classified.

As a member of the Senate Select Committee on Intelligence, I have access to these opinions; the public and most of my colleagues in Congress do not. Clearly it is necessary to classify substantial portions of the Court's opinions, since these opinions almost inevitably involve discussions of sensitive intelligence information. However, these opinions also contain the Judicial Branch's authoritative view on the meaning of federal intelligence surveillance law. It is simply not possible for members of Congress and the public to determine whether current law adequately protects both national security and civil liberties if they do not know how the law is being interpreted in court. While I naturally recognize the need to keep the details of sensitive warrant applications classified, I see no national security reason why most of the Court's general legal interpretations could not be redacted and publicly released.

While this year's surveillance debate may have concluded, another will undoubtedly begin next year as the expiration date for certain controversial provisions of the Patriot Act approaches. Access to the substance of the Court's opinions would greatly help to inform this debate. I therefore request that the Board review the Court's key opinions of the past ten years involving interpretation of the Foreign Intelligence Surveillance Act, and make recommendations regarding their classification. If you need assistance identifying the most relevant opinions, please do not hesitate to contact Mr. John Dickas of my staff at (202) 224-1700. I appreciate your consideration of this request, and look forward to your response.

On a related issue, I read the Board's first major report on improving declassification a few months ago, and I was very impressed by the thoroughness and professionalism with which you and your fellow Board members and staff have approached your work. I look forward to reading further reports of similarly high quality in the future.


Ron Wyden
U.S. Senator