New FISC Opinion: ACLU Has Standing to Seek 215 Opinions in FISC, Must Pursue Some 215 Opinions in FOIA Litigation; USG to Report on Declassification of Other 215 Opinions
That is the gist of this unclassified FISC opinion, penned by U.S. District Judge F. Dennis Saylor IV, today. It resolves a motion, which was brought by the ACLU's national and Washington, D.C.
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That is the gist of this unclassified FISC opinion, penned by U.S. District Judge F. Dennis Saylor IV, today. It resolves a motion, which was brought by the ACLU's national and Washington, D.C. branches and the Media Freedom and Information Access Clinic ("MFIAC"), and sought release of certain FISC opinions construing Section 215.
Here's the operative part of today's ruling:
For the reasons stated above, it is HEREBY ORDERED as follows:(1) The Court dismisses the Motion of the ACLU and the ACLU-NC to the extent that it requests publication of opinions that are at issue in the pending FOIA litigation in the District Court for the Southern District of New York. Such dismissal is without prejudice to reinstatement of a motion for publication with the FISC after resolution of that FOIA litigation, including any appeal therefrom.(2) The Court dismisses the claim of MFIAC for lack of standing.(3) By October 4, 2013, the government (and, to the extent particularly identifying information is available to it as plaintiff in the FOIA litigation, the ACLU) shall make a written submission identifying which Section 215 Opinions are subject to the FOIA litigation. By that same date, the government shall identify which Section 215 Opinions, if any, are not subject to the FOIA litigation (or a separate order under Rule 62(a)) and propose a timetable to complete a declassification review and submit to the Court its proposed redactions, if any, for each such Section 215 Opinion. After that review and submission, the author of each such opinion, with the benefit of any proposed redactions, may decide whether to propose publication pursuant to Rule 62(a).
Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.
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