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Secret Court Rulings Kept Out of Public View After U.S. Review

The U.S. hasn’t declassified any opinions by the court that approves surveillance of foreigners under a review process begun two years ago to determine whether any could be made public.

The Justice Department said in a May 8 response to a public records request that no rulings by the court, which was set up under the Foreign Intelligence Surveillance Act, or FISA, had been cleared for release.

The Obama administration created a process to consider declassifying court opinions starting in 2010, after lawmakers called for greater transparency. The FISA court considers government requests for electronic surveillance and physical searches of foreigners in the U.S. suspected of engaging in espionage or terrorism.

The court, which operates in secret, approved all 1,674 applications by the U.S. government to conduct electronic surveillance in 2011, according to an April 30 Justice Department report to Congressional leaders.

The review process was set up to determine whether opinions containing “significant” legal opinions could be released, said Lisa Monaco, the assistant attorney general who oversees the Justice Department’s National Security Division, in 2011 answers to questions from a Senate panel.

The records request, made under the Freedom of Information Act, came from the Federation of American Scientists, a Washington-based research group.

The “unique characteristics” of the FISA process complicate declassification, Dean Boyd, a Justice Department spokesman, said in a statement. Making FISA court opinions publicly available, even in edited form, “may enable a sophisticated adversary to deduce particular sources and methods or take effective countermeasures that deprive the United States of intelligence,” Boyd said.

Three FISA court rulings with “substantial legal opinions that could be severed from the sensitive facts of the underlying applications,” had been released prior to the establishment of the new review process, Boyd said.

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