Late last month, the Congressional Research Service (CRS) published, “Disclosure of FISA Opinions–Select Legal Issues,” which examines current procedures observed by the Foreign Intelligence Surveillance Court (FISC) and potential separation of powers issues that arise. Here I offer a brief summary:
As the CRS report acknowledges, many have raised concerns regarding the current FISC procedures given that most of the court’s opinions are classified. Some believe “this practice permits the government to rely upon ‘secret law’ to justify its activities[.]” However, in many instances, the secret nature of these opinions is vital to protecting the national security interests discussed therein.
Requiring the executive branch to release [FISC opinions] implicates Article II of the Constitution because it compels the President to disclose potentially sensitive documents, and could override the President’s classification decisions.
There is also tension over which government branch properly oversees this issue.
The Constitution assigns responsibility for the national defense to both Congress and the President. However, the extent to which Congress may regulate the President’s discretion over national security matters is a contentions issue.
The report goes on to explain that, although this issue is not well-settled through case law, control in this area is seemingly shared between the two branches–a perception that gleans support from an historical review, as well. And while courts have required the executive branch to comply with legislation compelling disclosure of certain information, as the author of the CRS report, Jared P. Cole indicates, such power “may not be absolute[,]” in light of Supreme Court decisions maintaining the integrity of the President’s power as Commander-in-Chief and when considering lower court opinions carving out exceptions to protect national security secrets.
You can read the full report here.
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