Law and Public Policy

Changes to the Foreign Intelligence Surveillance Court Rules

In a prior post I discussed a change to the Foreign Intelligence Surveillance Court’s Rules of Procedure.  Marc Ambinder, writing at The Atlantic and Steven Aftergood at Secrecy News both posted responses (thanks to both for the comments and traffic).  Ambinder tied my post to recent developments in the Ninth Circuit, noting:

“Just yesterday, the 9th circuit court of appeals preserved the executive branch’s ability to assert the State Secrets Privilege in cases where national security could be jeopardized by even the discovery phase of a trial. The only consideration that mattered to the court is whether the information’s release could actually damage national security… But the FISC, which regularly deals with highly classified information involving sources and methods, now wants to positively assert that it has the authority, in determining when and whether to release information about cases, to order the executive branch to figure out the appropriate redactions. Before, the executive branch could redact whatever it wanted. Now, the court wants to decide whether the executive branch can redact whatever it wants.”

Aftergood, on the other hand thinks both Ambinder and I misunderstand the Court’s change in language, and he even goes so far as to say that my reading is “hasty and likely erroneous.”  I won’t go that far in critiquing Aftergood’s reading, rather I think the fact that we disagree about this highlights the ambiguity in the rule and the need for clarity (a point echoed by Robert Chesney here).

To the substance.  Aftergood first argues that a change in wording from “Opinions (which ‘must’ be reviewed)” to “an ‘order, opinion, or other decision’ (which ‘may, as appropriate’ be subject to review)” somehow doesn’t mean exactly what it says.  His argument is premised on the fact that the mandatory “must” language was changed to the discretionary “may” language for not only “opinions” but also “orders” and “other decisions.”  On it’s face this change in language modifies both the discretionary nature of the review and the scope of the review.  Basic canons of statutory construction reinforce this point, as the Supreme Court has said:

“…in interpreting a statute a court should always turn first to one cardinal canon before all others. . . . [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last, judicial inquiry is complete.’” (Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)).

There’s not much less ambiguous than the distinction between may and must.  Granted, it’s not the legislature we’re dealing with here, but the same rule of construction should apply.  Even more on point, specifically with regard to the word “may” in a review process, the Second Circuit has held that “The use of a permissive verb — ‘may review’ instead of ‘shall review’ — suggests a discretionary rather than mandatory review process.” (Rastelli v. Warden, Metro. Correctional Center, 782 F.2d 17, 23 (2d Cir. 1986).)

Now, I admit that the change in language may result in an absurd reading when applied to scheduling orders and other minutiae, but it’s discretionary as to both, so the absurdity argument doesn’t apply.  What’s absurd (in the ordinary sense of the term) is that Executive Branch review is also discretionary as applied to opinions, which are my central concern (although I imagine some orders may also have information which the Executive Branch may want an opportunity to review before publication).  I’ll concede Aftergood’s best point, which is that the Executive Branch doesn’t need to review scheduling orders.  That still doesn’t change the fact that the plain text of the proposed rule shifts a mandatory review by politically accountable officials to a discretionary review by unaccountable officials.  A judge who was inclined to favor disclosure and transparency over secrecy may read the rule in the exact way that I’m reading it.  Unclear rules lead to uncertain results, and when dealing with matters of national security I see this rule change as an unnecessary risk.  Once information is released there is no way to pull it back, and that’s why I favor keeping the rule mandatory.  Contra Aftergood’s suggestion, my concern is not “scheduling matters” and “page limits” rather my concern is (as I stated in my prior post) to ensure that every opportunity to catch a mistake is undertaken.  That may not favor the end of immediate transparency (a sometimes laudable goal which Aftergood has advocated for), but it does favor national security.

Let me end on this point.  If reasonable people like Aftergood, Ambinder, and I can disagree on the meaning of this rule change, I imagine reasonable judges and Executive Branch officials could also disagree.  That is why the rule should be clarified.  Rather than arguing over the meaning of “may” and “must” the FISC could make the following changes:

For opinions, maintain the existing language “Before publication, the Opinion must be reviewed by the Executive Branch…”

For orders and other decisions the Court should place a 72 hour (or some other reasonable period of time) embargo on publication, with automatic publication at the end of the period unless the Executive Branch makes a request to the contrary.

This proposal clarifies the meaning of the rule and strikes an appropriate balance between national security and transparency.



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