Court Cloaked in Secrecy Shows a Hint of Openness

By ADAM LIPTAK

Published: September 10, 2007

The secret court that considers warrants for National Security Agency surveillance has for years met in a curious place — inside the Justice Department.

Consistent with that bit of symbolism, the court has approved almost all of the thousands of applications the department has presented to it over the years.

And the court, the Foreign Intelligence Surveillance Court, has deferred to the department in other settings, too. In January, when the Senate Judiciary Committee asked the court’s presiding judge for copies of orders it had issued concerning a surveillance program, she responded that she had no objection. Nonetheless, she wrote, “I would ask you to discuss the matter with the attorney general.”

In recent weeks, however, there have been signs of a new independence, perhaps prompted by the administration’s selective disclosures of aspects of the court’s orders.

Last month, for instance, the court issued a rare public order. It told the government to respond to a motion from the American Civil Liberties Union, which had asked the court to disclose parts of its decisions approving and limiting N.S.A. surveillance programs.

“This is an unprecedented request that warrants further briefing,” the presiding judge, Colleen Kollar-Kotelly wrote of the A.C.L.U.’s motion.

And Judge Kollar-Kotelly suspended the usual presumption of secrecy surrounding the court’s work, ordering the Justice Department to file its brief in public and to seek permission if it wanted to file anything under seal.

Lawyers for the A.C.L.U. said their request was a modest one. Large parts of the decisions may well be properly classified, they said. All they asked was that the court make an independent assessment of what may be disclosed.

The Justice Department, judging from the tone of the brief it filed Aug. 31, was taken aback by that suggestion. The A.C.L.U., the government said, “requests that this court second-guess the executive branch’s classification decision.” And the executive branch had decided, the brief continued, that “no part of any documents can be released without harming national security.”

A little sheepishly, the brief conceded that there had been exceptions. In January, for instance, Attorney General Alberto R. Gonzales described aspects of orders the court had issued that month.

But those disclosures, the brief said, were “in the interest of informing the public debate.” Perhaps coincidentally, they were also made just before a federal appeals court in Cincinnati was to hear arguments on the legality of the surveillance program.

The brief did not mention another set of even more detailed disclosures last month from Mike McConnell, the director of national intelligence. In an interview with The El Paso Times, Mr. McConnell seemed to do precisely what the Justice Department said the secret court may not. He disclosed in general terms the substance of the court’s decisions.

“So the second judge looked at the same data and said, ‘Well, wait a minute — I interpret the law, which is the FISA law, differently,’ ” Mr. McConnell said, according to a transcript of an interview on the newspaper’s Web site. He was referring to the Foreign Intelligence Surveillance Act, the 1978 law that established the secret court.

“And it came down to,” Mr. McConnell said of the second decision, “if it’s on a wire and in a foreign country, you have to have a warrant.”

It is one thing to argue that a judge’s mechanical application of a straightforward statute may be kept secret. It is another, lawyers for the A.C.L.U. say, for whole lines of sometimes conflicting precedent to be established in the dark.

“Having secret bodies of law is antithetical to our constitutional democracy,” said Melissa Goodman, a lawyer with the civil liberties group.

If the secret court is having doubts about the state of national security litigation, it is not alone.

Last week, judges on two ordinary federal courts expressed frustration and anxiety about the Bush administration’s approach.

On Wednesday, Judge Henry H. Kennedy Jr. of Federal District Court in Washington pressed the government for actual justifications in opposing a freedom of information suit seeking executive branch documents concerning the spying program. “Essentially saying ‘because we say so’ is an inadequate method,” Judge Kennedy wrote.

The next day, Judge Victor Marrero of Federal District Court in Manhattan struck down recent revisions to the USA Patriot Act, saying the deference the law required courts to give to the executive branch could amount to “the hijacking of constitutional values.”

In the case before the secret court, the A.C.L.U. will submit its response to the government’s brief on Friday, sending it to Room 6725 in the Justice Department. There is no word on whether the court will hear arguments or where that might happen.

But a spokesman for the Federal District Court in Washington said Friday that the secret court was in the midst of a relocation, out of the Justice Department. The secret court, with interesting timing that may signify a fresh approach, is moving to the courthouse.

Online: Documents and an archive of Adam Liptak’s articles and columns: nytimes.com
/adamliptak.