All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. FILED LEEANN HALL, CLERK 014 UNITED STATES US. Foreign intelligence Surveillance Court FOREIGN 1N SURVEILLANCE COI I RT WASHINGTON, D. C. OPINION ON MOTION FOR DISCLOSURE OF PRIOR DECISIONS ?Motion for Disclosure of Prior Decisions? (?Motion for Disclosure"). The Court denied this Motion on the record at the adversary hearing held on the underlying matter 01- 20.14. it writes this Opinion to explain its reasoning. I. BACKGROUND This case came before the Court on the Government?s ?Petition for an Order to Compel Compliance with ?l)irectives of the Director of National Intelligence and Attorney General,? submitted on? 2014 'l'he directive-s that the Govermnent is seeking to June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 12, page 1 of 10 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. enforce were issued pursuant to Section 702000) of the Foreign intelligence Suweiliance Act, as amended and served on Pursuant to a schedule set by order of the Court 0-014 collectively ?ch13'?) on - 2014.2 In its Reply, the Government repeatedly cited and quoted two opinions of the HSC that do not appear to have been made public in any form: one issued on September 4, 2008? and the other issued on August 26, 2014, I ?(her?i?a?er ?the Re?lUCSth Opinions"). and attendant targeting and minimization procedures pursuant to Section 702(3). The August 26, 2014 opinion approved the certi?cations and procedures now in effect, and the directives- 4, 2008 opinion approved?crti?cations and procedures. 1 HSA is codi?ed at 50 U.S.C. 1801-1885c. Within which Section 702 appears at 1881a. June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 12, page 2 of 10 pages. All withheld information exempt under b(1) and b(3) except as othenNise noted. Approved for public release. ?immediate access to [the Requested Opinions] (in appropriately redacted form) to adequately prepare for the hearing scheduled Motion for Disclosure at 1.3 Pursuant to the Court?s scheduling order of-2014, the Government submitted its opposition to the Motion for Disclosure (?Opposition?) on 201 4. 11. DISCUSSION As explained below. the Court concluded that neither PISA nor the Foreign Intelligence Surveillance Court (FISC) Rules of Procedure Rules?) require, or provide for discretionary, disclosure of the Requested Opinions in the circumstances of this case. Similarly, the Due Process Clause of the Fifth Amendment does not compel the requested disclosure and: otherwise. A. FISA and the NSC Rules The cases handled by the FISC involve classified intelligence gathering operations. From a security perspective, FISC operations ?are governed by FTSA, by Court rule,[4] and by statutorily mandated security procedures issued by the Chief Justice of the United States. ts counsel has a Top Secret security clearanc? eeking access to the Requested Opinions with any re actions Requested Opinions to a T0p Secret, non-compartmented level. necessary to downgra the 4 The FISC explicitly has the authority to establish rules for its proceedings under 50 USC. 1803(g)(1). June 13, 2017, Public Release EFF v. DOJ Document 12, page 3 of 10 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. June 13, 2017, Public Release Approved for public release. EFF v. DOJ 16-CV-02041 Document 12, page 4 of 10 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public rele ase. ?11 L4 recipient requires access to speci?c classi?ed information in order to perform or assist in a lawful and authorized governmental function.? dd) (emphasis added). B. Analysis The Court has reviewed the redacted copies of the Govermnent?s Reply (to include the supporting a?idavit) and ?nds that it clearly articulates the. Government?s legal arguments. _'ith0ut the Requested Decisions, it ?cannot adequately understand the guidance, and limitations thereof, that this Court has previously issued.? Motion for Disclosure at l. The Government responds that the Requested Opinions do not bear on the lieation of its targeting and minimization procedure further contends that its counsel ?has a ?need to know? with regard to the prior relevant Motion ToiDi?SclOst?ir'e The government retorts _ocs not have a need-to-know more about the contents of the Requested Decisions. Opposition at 3. The Court has carefully reviewed the Requested Opinions in the context of the issues presented by the Petition5 and the parties? respective arguments on those issues and compared the citations to and quotations from the Requested Opinions that appear in the Government?s Reply to the underlying texts. In no instance does the Reply quote or reference the Requested Opinions ??to comply with [each] directive or any part of it, as issued or as modified, if the judge ?nds that the directive meets the requirements of 1 Section 702] and is otherwise lawful.? 50 U.S.C. '1 1 June 13, 2017, Publ' Ic Release EFF v. DOJ Document 12, page 5 of 10 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. 71 4 in a manner that is incomplete, wrenched from necessary context or otherwise misleading with regard to the point being addressed. Based on that review, the Court linds that the Requested . Opinions would be of little, if any, assistance to?rguments it makes on the merits.? Given that FISC Rule 3 requires the Court to follow the Executive Order, the Court will not second-guess the Government?s need-to-know determination, which the Executive Order speci?cally commits to the Executive Branch. Moreover, there is no indication that the Governme need-to-know re uirement to mislead or otherwise gain a strategic advantage conclude in formation. Other aspects of the Section 702 framework support tot entitled to access to the Requested Opinions. The statute and the FISC Rules provide detailed guidance for the conduct of proceedings initiated by a petition to compel compliance with, or to modify or set aside, a Section 702 directive, 50 U.S.C. 1881a(h); FISC Rules 20-31, but they provide no mechanism for the recipient of a directive to seek discovery or disclosure ofelassi?ed information. They do provide for nondisclosure in the 6 The Court ?nds that this would especially be the case once compartmented information was redacted from the Requested Opinions. June 13, 2017, Public Release EFF v. DOJ Document 12, page 6 of 10 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. context of the ex parte review of certi?cations and accompanying procedures. S_e? 50 U.S.C. 1881a(g)(1)(A); Rule 30.7 in the context of a petition to compel compliance with (or to modify or set aside) a directive, in fact, FISA and Rule 70) provide just the opposite, they permit the Government to withhold classified information from the recipient of the directive. SE 50 [3.8.0 1881a(k)(2); FISC Rule Finally, the statute provides a 30-day period for the completion of review of the Petition inthis ease. 5.09 That 30-day period ends on -014, a deadline that is incompatible, as a practical matter: with the Government?s making redactions of the Requested Opinions l? or disclosure and 7 For the most part, the Requested Opinions pertain to classi?ed material that the Government submitted under seal, as required by 50 U.S.C. 18813( for ex parte and in camera review under l88la(i). In a prior ease, the FISC observed that ?the Congressional judgment embodied? in a comparable statutory provision for ex parte review oi'proccdures suggested that the FISC ?should not override the government?s opposition to the release 01" a classi?ed FISC. opinion. containing classi?ed information that ?directly relates to what the overnment [previously] submitted for ex parte and in camera review." Order issued 011-2008, at 2 n.2. The same logic is appliea ere. 8 Moreover, the detailed statutory provisions regarding FISC proceedings under Section 702 do nor provide form disclosure of opinions arising from the Court?s ex parte revrew ectron ce 1 10a ions and procedures. Section 702 makes clear that, in the ordinary course, the HSC will have reviewed and approved a certi?cation and accompanying procedures prior to the issuance of a directive pursuant to that certi?cation. 50 USE. 1881a(a), If Congress had thought access to such prior FISC opinions were necessary for the recipient of a directive to challenge its law?rlness, it could have provided for such access. 1 7 June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 12, page 7 of 10 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. consideration of whatever additional argument such counsel would make after reviewing the Requested Opinions.g C. Due Process In its Motion for Disclosure presents no argument and cites no authority for its suggestion that due process requires the requested disclosure. Motion for Disclosure at 1-2. The weight of authority indicates otherwise. For example, with respect to challenges to the lawfulness of electronic surveillance brought by an aggrieved person? the district court is required to review the application, order, and other materials relating to the electronic surveillance in camera and ex parte if ?the Attomey General ?les an affidavit under oath that disclosure . . . would harm the national security." 50 U.S.C. nevertheless. disclosure ma onlv occur even a artial disclosure ?under a re riate sceuritv . 3 - . procedures and protective orders" ?where such disclosure is necessary to make an accurate 9 The Court may extend that 30-day period consistent with national. security,? 188 1210 bu not shown I i - ccommo ate 6 re uestc Moreover, 't is doubtful that delaying resolution of the lawfulness of the Directives would be with national security. '0 ?Aggrieved person? is de?ned as ?a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.? 50 U.S.C. 1801(k). June 13, 2017, Public Release EFF v. DOJ Document 12, page 8 of 10 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. determination of the legality of the surveillance,? when the court has found that the surveillance was unlawful or ?to the extent that due process requires discovery or disclosure.? 1806(1), Courts have found non-disclosure of surveillance materials under these provisions to comport with due process, ea. United States v. lil-Mezain, 664 F.3d 467, 567-68 (5th Cir. 2011); United States v. Abuiihaa_d, 630 F.3d 102, 129 (2d Cir. 2010); United States v. Damrah, 412 F.3d 618, 623-24 (61h Cir. 2005), even when the attorneys seeking access have security clearances. United. States v. Ott, 827 F.2d 473, 476-77 (9th Cir. 1987). presented no reason to reach a different conclusion here. Beyond what is compelled by the Due Process Clause, the Court is satis?ed that withholding the Requested Opinions does not violate common-sense fairness. As stated above, each quotation or reference to the Requested Opinions in the Government?s Reply fairly represents what those opinions say on the discrete point addressed. And the Government properly adduced each of those points in reply t? Response. In these circumstances. the Court would decline to compel disclosure of the Requested Opinions as a matter of discretion, assuming for the sake of argument that indeed the Court would have discretion to compel disclosure in a proper ease. IV June 13, 2017, Public Release EFF v. DOJ 16-CV-02041 Document 12, page 9 of 10 pages. All withheld information exempt under b(1) and b(3) except as otherwise noted. Approved for public release. otion for Disclosure was I. lip/{NM [If 5?5; ROSEMARY M. COLLYER iludge, United States Foreign Intelligence Surveillance Court Because the Court ?nds no basis to conclude that the Government is improperly withholding the Requested. Decisions,? p.10 ask the government to show cause why these decisions should not be provr an to '6 any portions of pleadings that refer to materials that have not been provide Fm redacted form,? ?g Motion for Disclosure at 1 n. ,is a so cute . 10 June 13, 2017, Public Release EFF v. DOJ Document 12, page 10 of 10 pages.