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Spy court acts on request by the ACLU

The Baltimore Sun

WASHINGTON -- A secret federal court has ordered the Bush administration to respond to a request from a civil liberties group, which asked the court to make public its rulings that approved the National Security Agency's controversial "Terrorist Surveillance Program."

The order was announced yesterday by the American Civil Liberties Union, which filed the request earlier this month.

"This is an unprecedented request that warrants further briefing," wrote Judge Colleen Kollar-Kotelly, the presiding judge of the Foreign Intelligence Surveillance Court. She ordered the government to respond to the ACLU's request by the end of the month.

The order was an indication, according to some legal analysts, that the court may be willing to entertain requests from the public to disclose information about national security policies as long as classified information is protected.

The spy court was created by a 1978 law that requires warrants to spy inside the United States. It is responsible for reviewing secret government requests for domestic surveillance.

Its rulings are generally made in complete secrecy, because the government presents classified information in its warrant applications.

But the ACLU argued in an Aug. 8 motion that the court's decision in January to approve what had been a warrantless surveillance program monitoring communications linked to al-Qaida going into and out of the U.S. represented a different type of warrant.

Because the warrant authorized a program rather than an individual search, the ACLU argued, it represented an interpretation of the 1978 surveillance law that should be made public in declassified form.

Justice Department spokesman Brian Roehrkasse said the department is reviewing the court's order.

Jameel Jaffer, director of the ACLU's National Security Project, said that "there's no obvious national security reason why those kinds of legal arguments should remain secret."

He said public disclosure is necessary for an informed debate about further changes to surveillance laws - an issue Congress is expected to take up next month. Congress recently approved a significant expansion of government surveillance powers, but that law expires in six months, and Democrats have vowed to make changes.

The White House has strongly resisted public disclosure of the secret court's January order. However, administration officials have described it in general terms, calling it "innovative" and "complex."

The ACLU has asked for the disclosure of all rulings related to the NSA program that have been issued since January.

Suzanne Spaulding, a national security lawyer who has worked for both parties on Capitol Hill, called the court's willingness to entertain requests from public organizations "a really important" move that could provide a new avenue for reducing secrecy in national security policies.

"We're not a country of secret laws," said Spaulding, a former CIA counsel. She said that it was important to disclose the reasoning behind significant changes in national security policy, such as the laws governing spying in the United States.

Administration allies, however, said allowing the public to petition the court would undermine its integrity, which is predicated on complete secrecy so it can be trusted with highly classified matters. "It would create horrible problems," said David Rivkin, a former Justice Department official. "This is not a traffic court, for God's sake."

Legal analysts expect the government to challenge the ACLU's right to petition the spy court and oppose the group's request to have its orders made public.

Jaffer said the ACLU decided to submit its request after the top Democrat and Republican on the Senate Judiciary Committee wrote the court requesting that the orders be made public. The court responded that it would be willing to provide the orders if the administration agreed.

The ACLU reviewed the rules for the spy court and found that it may release its records upon "prior motion to an order by the court." It decided to file a motion, even though no public organization had done that before, because the rules did not specify who could file one.

The only time a ruling of the secret court has been made public was in 2002, when the Foreign Intelligence Surveillance Court of Review - the appellate panel for the spy court - overturned the lower spy court's ruling. The appellate ruling permitted intelligence sharing between prosecutors and intelligence officers, which supported the administration's position, and the White House did not oppose the disclosure of the ruling.


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