The American Civil Liberties Union wants the super-secret Foreign Intelligence Surveillance Court to let a little sunlight in to its traditionally closed proceedings. But the Bush administration argues, in a motion filed yesterday, that the only thing the Court should be showing ACLU attorneys is the door.

As Ars reported earlier this month, the ACLU responded to the passage of the controversial FISA Amendments act with both a constitutional challenge in civil court and a request that the FISC, which oversees foreign intelligence surveillance, notify the group of proceedings likely to raise questions about the "scope, meaning, and constitutionality" of the new law. It also asked for permission to file briefs in such proceedings, in order to ensure that they are "transparent and adversarial," and urged the Court to issue redacted public versions of both its own rulings and legal briefs submitted by the government. Otherwise, the ACLU argues, the Court would be in the position of crafting a body of secret constitutional law, a prospect in tension with basic democratic values.

Justice Deparment attorneys responded yesterday, with a plea for the court to reject the ACLU request. As the government motion argues—and the ACLU does not appear to contest—no third party can claim any statutory right to be informed of or participate in the Court's ex parte proceedings. But the government further claims that the executive branch's prerogative to control classified information and the statutory provision for closed proceedings both limit the Court's discretion to admit outsiders—and that it is "precluded from doing so here by statute, court rule, and mandated security measures."

The FISA court has, in a few exceptional circumstances, elected to release public versions of its own rulings—and even permitted the ACLU to submit arguments. But it has also rebuffed the group's requests for greater disclosure in the past. And that, according to the government, is as it should be, because without access to classified information, the ACLU could not "present any meaningful argument on the questions posed" before the Court.

The civil liberties group insists that it has no designs on sensitive national security information, and is interested only in being allowed to brief the court on purely legal questions. Crucial to the government's argument, then, is the claim that submissions to the court "are likely to contain little, if any, segregable unclassified information." Since the Court lacks discretion to disclose any salient details of the cases before it, the Justice Department argues, the ACLU request can only be understood as a pretext to mount a "facial" challenge to the FISA Amendments Act—in other words, a challenge that does not depend on any particular facts about the specific application or interpretation of the law. And the proper venue for that sort of challenge, according to the government, is an ordinary federal court, not the FISC.

While the Court has recently displayed a limited willingness to lift its veil of secrecy slightly, its long history of deference to the executive branch suggests that the odds are in the government's favor here. In which case it may be necessary to modify the old saying: "Ignorance of the law is no excuse... but it is mandatory."