A year ago Sen. Ron Wyden released a statement that the Foreign Intelligence Surveillance Court (FISC) had found, in at least one case, that the government's surveillance activities were both illegal under the FISA and unconstitutional under the Fourth Amendment.
This ruling was not made by some liberal outlier judge. It was by a exceptionally deferential court which approved, through 2011, 99.97% of the government's warrant applications. The justices are appointed by Chief Justice John Roberts, and it's likely he handpicked judges who share his hostility to Fourth Amendment protections. Given this heavily stacked court, one has to assume that whatever the violation was, it was a serious one.
But we don't know for sure, because the ruling is secret. The Senate sent a letter asking the court to release a summary of the ruling, presumably with any sensitive details specific to a particular investigation redacted, but so far it appears that no summary has been issued. The Obama administration has been fighting all attempts to release the ruling. Previously the usual national security justifications were given, but in their latest filing dated June 7, 2013 they have a new justification:
This action is outside the inherent jurisdiction previously recognized by this Court with respect to its supervisory power over its own records and files. Moreover, even if this Court had jurisdiction over this Motion, it should deny it, rather than allow another court to determine whether any portions of its opinion should be released under FOIA. Any such release would be incomplete and quite possibly misleading to the public about the role of this Court and the issues discussed in the opinion.
Two things here: the (a) Obama administration claims that the FISC has no jurisdiction over its own records, and (b) they claim that possible public confusion is a sufficient justification for secrecy. The jurisdiction argument is particularly interesting, because the Obama administration has previously claimed that only the FISC could order the records unsealed, when the EFF (the plaintiffs here) tried to go through a regular federal court.
1. In his recent statements, the President has said that there is congressional oversight, but the Senate's request for the documents to be released has so far been ignored.
2. In his recent statements, the President has said that there is judicial oversight, but he is filing motions in court claiming that neither regular courts nor the FISC courts have jurisdiction to order the ruling, or even part of the ruling, unsealed.
3. The government's actions have been determined by a court to violate the law, but there is no way to hold them accountable, because the nature of the crime(s) is secret. We have no way of knowing whether the court ordered any remedy, or even if Obama believes they have the authority to order a remedy.
4. In the past he has been very willing to state that he's stopped violating the law, for example, with respect to torture, without saying exactly what tortures were used and by whom. Whatever this new secret violation was, has he made a similar claim?