THIS POST HAS AN UPDATE HERE
The Foreign Intelligence Surveillance Court (FISC) proposes to change its Rules of Procedure. The proposed Rules and a call for comments are published here. The Rule change is largely an outgrowth of the 2008 FISA Amendments Act.
At first blush it looks like there's not a lot to see here. The Rules are a mere 16 pages long, modifying the 7 page rules which were last amended in 2006. The FAS Project on Government Secrecy has a helpful summary of the changes. They note that the Rules provide new procedures for telecommunication companies to petition for modification of dismissal of requests for assistance with surveillance. The new Rules also set forth new procedures for the government to compel cooperation by a non-compliant telecommunications provider.
There is also a slight wording change to Rule 5 now Rule 62 which I believe will have a big impact. Previously, Rule 5 required that the FISC send all opinions to the Executive branch for redaction of classified information, specifically Rule 5(c) stated:
"On request by a Judge, the Presiding Judge, after consulting with other Judges of the Court, may direct that an Opinion be published. Before publication, the Opinion must be reviewed by the Executive Branch and redacted, as necessary, to ensure that properly classified information is appropriately protected pursuant to Executive Order 12958 as amended by Executive Order 13292 (or its successor)."
Under proposed Rule 62, the Executive Branch review requirement is now optional:
"The Judge who authored an order, opinion, or other decision may sua sponte or on motion by a party request that it be published. Upon such request, the Presiding Judge, after consulting with other Judges of the Court, may direct that an order, opinion or other decision be published. Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that classified information is appropriately protected pursuant to Executive Order 13526 (or its successor)."
The DOJ National Security Division and the intelligence community should oppose this modification and request that Rule 62's language stating that "the Court may, as appropriate, direct the Executive Branch..." be amended to read "the Court must afford the Executive Branch the opportunity to review..." As currently structured Rule 62 allows a Judge in his/her own discretion to request publication of an order without consulting with the Executive Branch. As a matter of practice, it is unlikely that the Presiding Judge would disregard the potential risks to national security inherent in publishing FISC proceedings, and the government as a party to the litigation will likely register its request for an opportunity to redact any publication. However, this all rests on the assumption that everyone does their job properly and as with all things in life, mistakes can occur, therefore the Rule should presumptively provide an opportunity for the Executive Branch to weigh in and redact the order or opinion before publication. This is especially the case because judges receive only snippets of the overall intelligence picture, and are not privy to other information that may not have been relevant to the particular case before the FISC, but may be very relevant to any publication decision. (See e.g. Ctr. for Nat’l Sec. Studies, 331 F.3d at 928 noting that “the judiciary is in an extremely poor position to second-guess the executive’s judgment in this area of national security" and N. Jersey Media Group Inc. v. Ashcroft, 308 F. 3d 198, 219 (3rd Cir. 2002) stating "[G]iven judges' relative lack of expertise regarding national security and their inability to see the mosaic, we should not entrust to them the decision whether an isolated fact is sensitive enough to warrant closure.") I would soften that language a bit and merely say we should not entrust to them alone, the decision whether an isolated fact is sensitive. This is not a new concept, in fact it dates back to the founding era when George Washington noted that “Every minutiae should have a place in our collection, for things of a seemingly trifling nature when conjoined with others of a more serious cast may lead to very valuable conclusions.” (Letter from George Washington to Lord Stirling (Oct. 6, 1778).
Beyond the competence issue, there is an accountability issue. The authority for decisions regarding the release of classified information rests with the political branches who are accountable to the people when mistakes are made. If a Court wrongfully releases information that causes harm, the people will hold their political leaders responsible, not the Court who with life tenure is unaccountable. As such, the Executive Branch should be forced to weigh in on publication decisions, and the Rule should mandate such reflection.