Sen. Ron Wyden has been a voice crying in the wilderness about the over reach of the NSA data dragnet. This story appeared in the news media almost a year ago.



On “at least one occasion” the federal government violated the Constitution’s ban on unreasonable searches in using its power to wiretap people in the U.S. without a warrant, a federal court said. The Foreign Intelligence Surveillance Court’s finding was disclosed without any details in a letter yesterday to Democratic Senator Ron Wyden of Oregon from a top aide to Director of National Intelligence James Clapper. Wyden is a member of the Senate Intelligence Committee and a critic of the law permitting warrantless wiretaps.

The Obama administration created a process to consider declassifying FISA court opinions starting in 2010, after lawmakers called for greater transparency. On May 8, the Justice Department said in response to a public records request that no court rulings had been cleared for release.

And that is where the matter has stood up until recently. The government has adamantly refused to release any information about the FISA court order under the claim that all proceedings of the court are a state secret. Suddenly there has been a change in the wind.

The Surveillance State Suffers a Surprise Legal Setback



The Electronic Frontier Foundation scored a remarkable — and remarkably timely — legal victory on Wednesday. The secret court at the center of the recent NSA surveillance revelations allowed the group's push for the release of a ruling on violations of Americans' Fourth Amendment rights to move forward.

In a phone interview with The Atlantic Wire, EFF staff attorney Mark Rumold explained what comes next. "Now we go back to the regular district court in D.C., and we reopen the FOIA case, and we move forward," he said. "In their earlier arguments, [Justice] claimed that the only thing requiring them to withhold the opinion as a whole was the FISC's rules." Since the Freedom of Information Act requires the release of any information that can be segregated from classified data, Rumold said, "I think at this point they're going to have to release parts of the opinion."

This is a complicated game of legal cat and mouse. It doesn't require a conspiracy theory to speculate that the recent spotlight shined on the activities of the NSA might have had something to do with this change in the wind. The government has repeatedly claimed that everything is being done in a manner that is legal under current law. By denying standing to Human Rights Watch SCOTUS has blocked attempts to initiate a court review of the constitutional issues involved.

The case that is referenced in this FISA opinion seems likely to be one that would hold the magic key to standing, a party that has been directly subject to a 4th amendment violation. That would explain why the DOJ has gone to such pains to keep the information secret.