The Foreign Intelligence Surveillance Court (FISC) has declined a request by the ACLU to release court records for rulings that pertain to the NSA surveillance program. The secretive FISC, which has issued only three public decisions in its history, will not disclose the details or reasoning behind critical rulings that evaluate the legality of the NSA surveillance program because the court argues that doing so would endanger national security and hamper the federal government's intelligence gathering abilities.

The classified status of FISC documents is dictated by the executive branch of the federal government. The ACLU's request called for independent judicial review of relevant documents so that wrongfully classified material could be declassified and disclosed to the general public. It is important to note that the ACLU did not request unconditional disclosure of classified material. The ACLU's request explicitly excludes material that, upon judicial review, is deemed to be properly classified.

The ACLU argues that the executive branch should not be able to unilaterally obscure access to information that could provide essential insight into the legal basis for national surveillance programs. The ACLU hoped that the FISC would take on an oversight role to prevent the executive branch from abusing its power to determine what documents are classified. Such oversight is consistent with the underlying intent of the Separation of Powers doctrine, claims the ACLU, but the court concluded that instating FISC oversight of classification status would jeopardize national security and undermine the nature of the FISC process.

"Under FISA and the applicable Security Procedures, there is no role for this Court independently to review, and potentially override, Executive Branch classification decisions," wrote Judge John D. Bates in the FISC decision (PDF). "If the FISC were to assume the role of independently making declassification and release decisions in the probing manner requested by the ACLU, there would be a real risk of harm to national security interests and ultimately to the FISA process itself."

The court acknowledges that public disclosure of the material requested by the ACLU could potentially prevent government abuse of surveillance powers, but denies that the good would outweigh the potential consequences.

"The ACLU is correct in asserting that certain benefits could be expected from public access to the requested materials. There might be greater understanding of the FISC's decisionmaking. Enhanced public scrutiny could provide an additional safeguard against mistakes, overreaching or abuse. And the public could participate in a better-informed manner in debates over legislative proposals relating to FISA," Bates wrote, "[but] the detrimental consequences of broad public access to FISC proceedings or records would greatly outweigh any such benefits."

Bates lists several contexts in which public access to FISC documents could prove problematic. He argues that releasing FISC documents could potentially expose details of surveillance methods, thereby enabling suspects to evade government intelligence-gathering operations. He also notes that disclosure of confidential sources would deter informants from providing important information to the federal government and that the risk of public scrutiny would deter the government from working through FISA. "All of these possible harms are real and significant, and quite frankly, beyond debate," Bates wrote.

Obviously, the reason why the ACLU asked for judicial review of the documents rather than unconditional disclosure is so that the FISC would be able to disclose, at its discretion, only the legally pertinent information that poses no risks to national security and entails no such consequences. Judge Bates, however, believes that partial disclosure would "confuse or obscure, rather than illuminate, the decisions in question," while creating the significant risk of accidentally exposing material that should remain classified.

The ACLU insists that present oversight of government surveillance activities is insufficient and that public access to the FISC wiretapping records is greatly needed. "The decision is disappointing, both in its reasoning and its result," said ACLU National Security Project director Jameel Jaffer in a statement. "A federal court's interpretation of federal law should not be kept secret from the American public. The Bush administration is seeking expanded surveillance powers from Congress because of the rulings issued by the Foreign Intelligence Surveillance Court earlier this year. Under this decision, those rulings may remain secret forever."

Balancing national security with the public's fundamental right to know what the government is doing in its name is a difficult challenge, but no challenge should necessitate abdication of essential checks and balances. In light of evidence of frequent and persistent surveillance abuses perpetrated by the federal government, it's possible that the risks of limiting transparency may exceed the risks posed by the undisclosed threats from which these surveillance programs are devised to protect us. Unfortunately, it looks like we will never know.