By:  Timothy P. Flynn

Well, you had to see this one coming.  Something just does not seem right when a federal court adjudicates in secret, even if done under the provisions of the Patriot Act.

When Edward Snowden released a cashe of classified national security-related information earlier this summer, many in the legal blogosphere began to take note, and the Federal Intelligence Surveillance Court [FISC] was suddenly in the spotlight.

Much of the Snowden-generated furor involved government tracking and storage of email and cell phone transmissions; data, big and raw.  Here is our take on the issue in this post.

Thanks to the ACLU of Washtington, D.C., the FISC is again in the spotlight on a motion, brought pursuant to the Freedom of Information Act, to release certain opinions of the secret court which deal directly with the constitutionality of the court.  Opinions deciding the FISC's own constitutionality; now there is an interesting method of judicial review.

Here is the FISC Opinion, authored by Judge Dennis Saylor, ordering the federal government and the ACLU to submit a list of constitutional-threshold FISC opinions and a proposed declassification process by which the opinions can be submitted to the judge that authored the opinion for the author's judicial consideration as to whether they should be publicized.

Sound complicated?  Well, at least it is some progress toward openness.  The government list of opinions deemed suitable for publication and a proposed declassification procedure are due by October 4th.

The ACLU's filing sought publication of the FISC opinions directly from the stealth court itself, rather than as a component of separate litigation.  As noted in Judge Saylor's opinion, a similar request was lodged in 2011 by the ACLU in federal court in Manhattan which continues to be litigated.

When they are finally made public, these opinions will be very interesting.  We here at the Law Blogger cannot wait to see how the FISC passed muster on itself.

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