Criminal Justice & the Rule of Law

Watermelons and National Security: Protecting U.S. Foreign Intelligence Collection from Unnecessary Disclosure

Daniel J. Rosenthal
Monday, August 22, 2016, 10:16 AM

In 1966, Congress enacted the Freedom of Information Act (FOIA) to create a legal regime under which the American public could gain access to information about its government’s activities. In keeping with Justice Brandeis’s observation that “sunlight is the best disinfectant,” FOIA has become an invaluable tool in forcing information of national interest into the open, and of revealing instances of government waste, fraud, and abuse.

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In 1966, Congress enacted the Freedom of Information Act (FOIA) to create a legal regime under which the American public could gain access to information about its government’s activities. In keeping with Justice Brandeis’s observation that “sunlight is the best disinfectant,” FOIA has become an invaluable tool in forcing information of national interest into the open, and of revealing instances of government waste, fraud, and abuse.

Despite the general ethic of openness, FOIA exempts, among other things, national security (i.e. classified) information, trade secrets and commercial or financial information, information related solely to the internal personnel rules of an agency, and personnel and medical files. In addition, FOIA exempts information “specifically exempted from disclosure by statute.” 5 U.S.C. § 552(b)(3) (such statutes are referred to as “Exemption 3” statutes). A significant number of statutes include FOIA exemptions, including those exempting individual tax return information and personally identifiable information pertaining to members of the armed forces. Even information about watermelon growers is protected from disclosure by Federal law. (Seriously. 7 U.S.C. § 4908(c)).

In recent years, private litigants have increasingly used FOIA as a means of obtaining sensitive information regarding U.S. foreign intelligence collection. In federal court cases across the country, the government fights these lawsuits on the grounds that public release of the information sought would harm national security. The process of defending these suits is time consuming, messy, and diverts critical intelligence community resources away from their responsibility of protecting U.S. national security interests. In some instances, the government successfully prevents public disclosures it views as harmful to national security. However, in some instances, the court challenges the government’s assertions of national security harm—often in an extremely burdensome line-by-line review of documents at issue—and, in some cases, even orders public disclosure notwithstanding those national security concerns.

One would presume our laws protect extremely sensitive information regarding foreign intelligence collection as strongly as they guard information about the watermelon industry—which is categorically exempted—from public disclosure. But, in defending these suits, the Department of Justice raises non-categorical arguments, such as that the information sought is properly classified. In doing so, the government fails to pursue the stronger position that foreign intelligence collection under the Foreign Intelligence Surveillance Act (“FISA”) is categorically exempt from disclosure under FOIA.

A careful reading of the law, however, demonstrates that FISA information is off limits to FOIA litigants. And if successful in making this argument, the Department would unburden the intelligence community from generating painfully detailed and time consuming justifications for the appropriate classification of each line in every FISA document requested by FOIA litigants across the country.

As made clear in the text of FISA itself, and as supported by a rich legislative history, Congress recognized the inherent and categorical sensitivity of U.S. surveillance activities and intended to exempt FISA activities from disclosure through FOIA. Moreover, passage in 2015 of the USA FREEDOM Act, which includes a provision that requires that the government conduct a review for potential public release of FISA opinions that include a significant interpretation of law, constitutes a new and distinct statutory regime for release of certain FISA court opinions. Taken together, FISA’s provision regarding release of FISA information in certain narrow circumstances and the USA FREEDOM Act’s disclosure provision demonstrate that Congress speaks with precision when it seeks to regulate the release of FISA information. Subjecting FISA information to the more generalized procedures in FOIA applicable to all government information conflicts with these carefully drawn procedures for regulating release of highly sensitive FISA information.

By raising these arguments, I do not seek to foreclose all public disclosure of information about U.S. foreign intelligence collection activities undertaken under FISA. To be sure, there are times in which government should be more transparent with the American public with regard to its foreign intelligence activities, as many argued in the immediate wake of the unauthorized disclosures of highly classified FISA information in June 2013. Indeed, during the height of the controversy regarding government surveillance in 2013, the Executive branch took unprecedented steps to release vast amounts of information regarding these programs.

Instead, adoption of the legal arguments below would have the effect of altering the forum and means by which those determinations are made. Currently, the extent and timing of public disclosures regarding U.S. foreign intelligence activities are dictated primarily by the particular FOIA requests made by private advocacy organizations and media outlets, and the vagaries of briefing schedules and the timing of orders issued by Federal judges. But disclosure decisions regarding foreign intelligence collection under FISA should—with very limited exception as identified expressly in FISA and the USA FREEDOM Act—be made by the Executive branch according to its responsibility to preserve its foreign intelligence capabilities, which in many instances requires that they remain secret, and its countervailing policy judgments about whether and to what extent it can disclose information regarding such activities to the American public while preserving (or as some argue, in order to preserve) its ability to effectively carry out such operations in the future.

Such a regime not only represents the better policy and legal framework for making decisions regarding the disclosure of sensitive national security information, but as explained below, it is supported by the text and case law regarding FOIA, the plain text of FISA and the clear congressional intent in establishing it, and Congress’s most recent transparency provision in the USA FREEDOM Act.

Foreign Intelligence Collection Under FISA is Not Subject to Public Disclosure under FOIA

While FOIA establishes a default for public access to Executive branch information, it recognizes certain exceptions, including for example private health information, and in cases in which a separate Federal statute either exempts certain information from public disclosure or seeks to create a separate means for governing public access to it. 5 U.S.C. § 552 (b)(3)(a)(ii) (exempting information that is “specifically exempted from disclosure by the statute” if the statute (a) “establishes particular criteria for withholding”, or (b) “refers to particular types of matters to be withheld.”). FISA is such a statute. It establishes a comprehensive scheme for the acquisition, retention, dissemination, and use of, and public requests for access to, electronic surveillance information. FISA’s text, its legislative history, and its operational scheme, all support the conclusion that it constitutes an Exemption 3 statute under FOIA.

FISA’s Unambiguous Language Establishes the Exclusive Means for Aggrieved Persons to Seek Access to FISA Information

Section 1806 of FISA generally governs the use of FISA information in various official proceedings, including criminal proceedings. In essence, the provision stands to protect the liberty and due process rights of individuals against whom the government seeks to use FISA information (“aggrieved persons”), by enabling them to seek the underlying records as part of their effort to challenge the lawfulness of the surveillance. But FISA does not establish a free-for-all for access to sensitive FISA information. It creates a carefully circumscribed procedure to be invoked only in narrow instances in which due process requires disclosure of the information. As the Senate Intelligence Committee explained in its report accompanying its proposal for passage of FISA, a central purpose in establishing procedures regarding the disclosure of FISA information is to create a process that appropriately balances national security interests with the right to a fair trial. S.Rep. 95-701 at 4033. The Committee’s focus on the potential need for release of FISA information solely in the context of formal proceedings is clear given its view that, “once a judicial determination is made that the surveillance was lawful, a motion for discovery of evidence must be denied unless disclosure or discovery is required by due process.” Id. at 4034. It is against this backdrop that Congress, through Section 1806, established a narrow process by which an aggrieved party could seek access to FISA information.

FISA establishes particular criteria for withholding FISA information. 5 U.S.C. § 552 (b)(3)(a)(ii). That process enables aggrieved persons to seek “to discover or obtain” FISA information under a procedure that affords the Attorney General an opportunity to attest to the national security harm that would result from the public release of the information. Under the provision, a court may nonetheless authorize release of the information if doing so is “necessary to make an accurate determination of the legality of the surveillance.” 50 U.S.C. § 1806(f).

Section 1806 likewise identifies the particular types of matters to be withheld; specifically, “applications or orders or other materials relating to electronic surveillance.” While the language is facially broad, the true scope of this provision is comparatively narrow given the relatively limited scope of FISA. See Wisc. Project v. Commerce, 317 F.3d 275,281 (D.C. Cir. 2003) (finding “little difficulty” in concluding that a provision in the Export Administration Act that related specifically to “information obtained for the purpose of consideration of, or concerning, license applications under this Act” adequately specified the particular types of matters to be withheld to constitute an Exemption 3 statute under FOIA).

In addition, section 1806 applies regardless of the purpose for which the FISA records are sought, and thus provides the exclusive means by which an aggrieved party may seek access to FISA information. It applies “whenever a motion is made pursuant to subsection (e) [which relates to motions to suppress], or “whenever any motion or request is made by an aggrieved party pursuant to any other statute or rule of the United States . . . to discover or obtain applications or orders or other materials relating to electronic surveillance or to discover, obtain, or suppress evidence or information obtained or derived from electronic surveillance under this Act.” By its very terms, the provision applies not just to requests for disclosure made as part of motions to suppress, but also with regard to “any other” request for disclosure, made pursuant to “any other” statute. It is simply inconsistent with this language to permit an aggrieved party to seek access to FISA records under FOIA; and it is even more inconsistent to allow someone other than a party—i.e. someone with even less legal interest in access to FISA records—to utilize FOIA to obtain what an aggrieved party cannot, as this article will explain further below. Under such a scenario, an “aggrieved party” would be seeking “to discover or obtain” FISA records under “any other statute,” but FISA itself requires that any such request be governed by the specific process that it establishes. And were there to be any question as to whether the process set forth in FISA for adjudicating disclosure requests precludes other processes (e.g., FOIA), FISA expressly states that courts “shall” apply its process “notwithstanding any other law.” Id.

Legislative History Supports the Conclusion that Section 1806 Constitutes the Exclusive Means for Aggrieved Persons to Seek Access to FISA Information

As noted above, information is exempt from FOIA if a statute “establishes particular criteria for withholding” the information. 5 U.S.C. § 552 (b)(3)(a)(ii). Apart from a clear textual conclusion that Section 1806 does indeed establish particular criteria for withholding FISA information, that conclusion is fully consistent with Congress’s intent by that provision. In its report accompanying its proposal for passage of FISA, the Senate Intelligence Committee noted its view that this provision “states in detail the procedures the court shall follow.” S. Rep. 95-701, at 4032 (characterizing the procedures as “carefully drawn procedures”).

Moreover, FISA’s text makes clear that if the Court concludes that the surveillance was lawful it “shall deny the motion of the aggrieved person except to the extent that due process requires discovery or disclosure.” 50 U.S.C. § 1806(f). It would thwart the purpose of the provision were an aggrieved party then able to seek the same records through FOIA. Doing so would also be inconsistent with Congress’s intent, as the Senate Intelligence Committee “wish[ed] to make very clear that these procedures apply whatever the underlying rule or statute referred to in the motion. This is necessary to prevent these carefully drawn procedures from being bypassed by the inventive litigant using a new statute; rule or judicial construction.” S. Rep. 95-701 at 4032. Moreover, the House Report noted that this provision “alters existing law and is a limitation on existing discovery practice.” H. Rep. 95-1293 at 94 n.50. Nevertheless, the House believed that in the face of a determination that the surveillance was lawful, “security considerations should preclude any disclosure unless due process requires disclosure.” Id.

Furthermore, Congress recognized that the government maintains a choice in whether to disclose FISA records. The Senate Intelligence Committee recognized that if the court concludes that disclosure of FISA records is necessary to evaluate the legality of the surveillance, “the government must choose – either disclose the material or forgo the use of the surveillance-based evidence.” S. Rep. 95-701. This would represent a false choice were an aggrieved person, wholly apart from the Section 1806 context, able to seek FISA records using FOIA.

Apart from the procedures established by Section 1806, the House Intelligence Committee noted that “other defenses against disclosure may be able to be made”—specifically mentioning, as an example, FOIA defenses—in instances in which the underlying surveillance was first deemed illegal. In other words, to the extent the provision is read consistent with this report language, there is an outer limit to the applicability of Section 1806—it will not protect information obtained illegally. Conversely, absent a determination that the underlying surveillance is illegal, other statutory means for seeking access to information (e.g., FOIA), along with their “other defenses against disclosure,” do not apply, as again Congress intended by Section 1806 to occupy the field as to access requests. Of course wholly apart from statutory defenses to disclosure, the government may continue to assert non-statutory defenses, including for example the State Secrets privilege, which does not find their root in congressional authorization but in the constitutional principles. El-Masri v. U.S., 479 F.3d 296, 303 (4th Cir. 2007).

The specific mention of the availability of FOIA defenses only after a judicial determination that surveillance was unlawful under FISA is telling, and suggests by implication that a FOIA suit seeking FISA information should generally fail because of the threshold obstacle: the surveillance was lawful, and therefore not available to a litigant because FISA’s access rules govern. Of course the plain text of the provision itself is far less permissive; it contains no mechanism for seeking records of electronic surveillance—determined lawful or unlawful—but through the process that it establishes.

But What About Non-Aggrieved Persons?

Section 1806 is silent as to non-aggrieved persons. The best reading of this omission is that non-aggrieved persons (1) cannot seek access to FISA records under Section 1806, but more importantly for these purposes, (2) like aggrieved persons—cannot use FOIA to seek access to FISA records.

In Section 1806, Congress recognized the heightened liberty interest in FISA information by a person when the person is an aggrieved party as defined by FISA. With regard to Section 1806, the Senate Intelligence Committee report addresses in detail the procedure that it envisions with regard to access by aggrieved parties to FISA information. Specifically, the Committee explained that the purpose of Section 1806’s disclosure procedure is to be used when the court must determine “whether it is necessary to order disclosure to a person” in cases in which they seek “to attack the legality of the surveillance” and that it is these procedures, “notwithstanding any other law that must be used to resolve the question.” S.Rep. 95-701 4032, 4033. Thus, even under Section 1806, the court’s authority to order disclosure is incident to its sole obligation of assessing whether disclosure “is necessary for making an accurate determination of the legality of the surveillance.” S. Rep. 95-701 at 4033. And even in such cases, the court is not truly ordering disclosure of the information. Instead, where the Executive branch concludes that disclosure of the information would damage national security, “the Government must choose – either disclose the material or forgo the use of the surveillance-based evidence.” S. Rep. 95-701 at 4034.

All of this supports the view that, under 1806 (both insofar as it only addresses aggrieved parties and according to the legislative history), the party’s legal rights of access to FISA information is tethered to his status as an aggrieved party and the court’s role in adjudicating the lawfulness of the information being used against him. It would be an absurd result were a non-aggrieved party able to seek through FOIA the same records that an aggrieved party must seek solely through Section 1806. See Newport v. Air Force, 684 F.3d 160, 166 (D.C. Cir. 2012) (concluding that “a provision that contemplates release only to U.S. allies and contractors cannot be read as limiting the Defense Department’s withholding authority under FOIA” because distinctions between requesters under FOIA “would serve little purpose” because “once record are released, nothing in FOIA prevents the requester from disclosing the information to anyone else”) (internal quotation marks omitted). Again, Congress recognized that an aggrieved party may be uniquely entitled to the information they seek (arguably a more significant interest than any other party). It seems far-fetched to believe that Congress sought to regulate the means by which aggrieved parties can seek access to these records, but left lesser situated parties free to seek the same records through FOIA.

Other Federal Statutes By Comparison

While a significant number of statutes that have been determined to be exempt from FOIA contain express exemptions, prohibitions, or limitation on release (e.g., records “shall not be disclosed to the public”), courts have held that other statutes that lack an express prohibition or limitation on release nevertheless constitute Exemption 3 statues under FOIA. The Internal Revenue Code and the Parole Act are highly instructive for purposes of evaluating Section 1806 of FISA.

The Internal Revenue Code provides the Secretary of Treasury with the discretion to disclose to a taxpayer “return information” upon a taxpayer’s request. 26 U.S.C. 6103(c). The provision directs that return information not be disclosed, however, “if the Secretary determines that such disclosure would seriously impair Federal tax administration.” Id. The Fifth Circuit concluded that this provision satisfied both prongs of Exemption 3 under FOIA; that is, that the provision (1) “establishes particular criteria for withholding” and (2) “refers to particular types of matters to be withheld.” Chamberlain v. Kurtz, 589 F.2d 827 (5th Cir. 1979) (concluding that Exemption 3 does not exclude statutes that leave “an agency with discretion over the disclosure of information; it merely required that this discretion be limited to certain defined matters or that it be informed by established criteria”).

The holding in Chamberlain supports the view that Section 1806 of FISA satisfies the requirements of Exemption 3 of FOIA. In fact, the language in Section 1806 seems to do so more clearly than the Code. Whereas the Code predicates release on a single criterion at the Secretary’s discretion, Section 1806 establishes a fairly involved procedure that includes Executive branch and Judicial branch decision-making. And whereas “return information” could collectively constitute an enormous volume of information, Section 1806 applies to what likely is a far smaller universe of government records. In concluding that Section 6103 of the Code constituted an Exemption 3 statute, the court noted that because Congress passed the Code and FOIA close in time, it was “difficult to believe that Congress enacted a comprehensive scheme for releasing information to taxpayers with the intention that it have no further applicability once the taxpayer files an FOIA suit.” Id. at 840. This seems highly supportive of the construction of 1806 above, which also was passed fairly closely in time to FOIA.

Separately, the Code authorizes disclosure for certain specific purposes “in judicial and administrative tax proceedings.” 26 U.S.C. 6103(h)(4). Even in the face of this express language authorizing release in certain circumstances, the court concluded that it was “not reasonable to believe that Congress enacted Subsections 6103(c) and (e)(6) which specifically address a taxpayer's right to his own tax files, intending that these provisions cease to operate as soon as the taxpayer's tax information becomes either directly or indirectly involved in a judicial or administrative tax proceeding. Such an interpretation would effectively nullify subsections (c) and (e)(6) since they could be circumvented merely by initiating a judicial or administrative proceeding.” Id. at 838.

This logic applies with greater force in the Section 1806 context. FOIA suits for FISA information would likewise “effectively nullify” Section 1806. But unlike the Code’s authorization to disclose in certain proceedings, Section 1806 contains no such wiggle room. It does the opposite by expressly requiring with expansive and unambiguous language that each and every request for records in any other proceeding be funneled through the process it establishes (“whenever” a motion is made under “any other statute” before “any court or authority of the United States”, and “notwithstanding any other law”). In other words, permitting FOIA suits for FISA information would not only subvert Congress’s implied intent (as the court in Chamberlain concluded as to Section 6103 of the Code), it would contradict the express terms of Section 1806.

Prior to repeal, the Parole Act in the 1980s directed that prisoners be provided “reasonable access” to presentence reports and “other documents used by the Commission” in making its parole decisions. 18 U.S.C. 4208(b). Expressly excluded were three categories of information: diagnostic opinions, confidential information, and any other information that would be harmful if disclosed. The Supreme Court concluded that because the statute required reasonable access, the provision as a whole did not constitute an Exemption 3 statute under FOIA. DOJ v. Julian, 486 U.S. 1, 9 (1988). But the Court separately concluded—albeit without significant analysis—that the categories of information expressly excluded from the reasonable access requirement are exempt from disclosure under Exemption 3 of FOIA.

These categories of information provide a useful analogue to Section 1806, which applies to “applications or orders or other materials relating to electronic surveillance.” Like Section 1806, the Parole Act does not expressly exempt these categories of information. And yet the Court still concluded that these categories of information were statutorily exempt from FOIA. The circuit court opinion in this case noted that as to these categories of information, Exemption 3 “does not override these provisions. In fact, it ensures their vitality.” Julian v. DOJ, 806 F.2d 1411, 1416 (9th Cir. 1986). In other words, even in the absence of Exemption 3, it would be reasonable and persuasive to read Section 1806 and its applicability to “any other statute,” passed after FOIA, as preempting it. Exemption 3 provides the backstop.

The USA FREEDOM Act Provides a Narrow Additional Instance of Public Release of FISA Information

In 2015, Congress passed the USA FREEDOM Act, which made certain modifications to the statutory authorities used by the Executive branch to conduct foreign intelligence collection (including for counterterrorism purposes). The driving force of its passage was an effort by the government to appease those who were critical of government surveillance following unauthorized disclosures about those activities in June 2013.

Among its provisions, the USA FREEDOM Act requires that a “declassification review” be undertaken of decisions of the FISA court that include a significant construction or interpretation of law. By this provision, Congress sought to facilitate public access to FISA opinions for which there is a heightened interest.

Passage of this provision provides significant support to the argument that FISA information is not, and should not be, subject to public release through FOIA requests or litigation. As with FISA itself, the USA FREEDOM Act provides very specific procedures for the release of specific FISA information in narrow circumstances. Taken together, FISA and the USA FREEDOM Act enable the release of FISA information only where the due process rights of an aggrieved party may require disclosure, or where there is a significant public interest in the information. Through these two laws, Congress has been precise in identifying what FISA information it wants released publicly. Subjecting FISA information to FOIA requests and litigation conflicts directly with Congress’s effort to regulate the release of FISA information in both FISA and the USA FREEDOM Act.

And even with regard to the disclosure provision in the USA FREEDOM Act, Congress provided a mechanism for the Director of National Intelligence to continue to protect from public release opinions when he concludes that the national security requires it. That carve-out, which helps protect the constitutionality of the provision by maintaining for the Executive branch the ultimate decision as to whether to disclose, would be wholly illusory were a private litigant able to bring a FOIA suit in an attempt to force that information out into the public. If subjected to FOIA, private litigants would have an opportunity to challenge the Executive branch’s assertion of national security harm as to the release of these opinions, which is inconsistent with the authority conferred on the Director of National Intelligence by Section 402 to make a final determination as to public release.

The Way Ahead

In Federal courts around the country, private litigants—almost all of whom are non-aggrieved parties under FISA—routinely seek access to FISA information through FOIA lawsuits. These suits should be dismissed on the basis that FISA information is subject to disclosure only pursuant to the very particular and “carefully drawn” procedures that it establishes for adjudicating such requests. This conclusion is based on a straight-forward application of FOIA caselaw and the plain and best reading of Section 1806 of FISA. It also provides full effect to Congress’s intent in establishing such specific procedures regarding public disclosure of FISA information. Finally, it is bolstered by Congress’s recent steps, through the USA FREEDOM Act, to provide an additional narrow instance of potential public release of FISA information.

Agencies within the U.S. intelligence community are increasingly under siege from these lawsuits and are forced to divert valuable and limited resources from their job of protecting the American public to responding to line-by-line challenges to their assertions as to why FISA information is inappropriate for public consumption. The Department of Justice should adopt the legal arguments set forth above, consistent with its duty to vigorously defend its clients, so that the decision about release of FISA information can be returned to the discretion of the Executive branch, consistent with Congress’s intent when it created FISA. If the Department does not affirmatively make these arguments (though it is inconceivable why it would choose not to make plausible arguments in defense of its clients), Federal judges with pending FISA-related FOIA cases should take up the matter on their own initiative. Perhaps I will help them along by filing a friend of the court brief in a future case.

If the courts ultimately agree with the legal analysis presented here, the public will not lose all access to FISA information. Indeed, there is no statutory provision that prevents the authorized disclosure of FISA information by the Executive branch to the public. Instead, those decisions will be made by the Executive branch in cases in which it concludes that the public benefit of disclosure (to help achieve public support and ensure long-term sustainability of such activities), outweighs the damage to their efficacy that will inevitably result from their release.

Release of information about the watermelon industry does not risk compromise to U.S. national security. But release of FISA information does. It is time that we protect FISA information from FOIA litigation. Through FISA and the USA FREEDOM Act, Congress created procedures allowing for limited release of such information when due process required release, or in cases of extreme public interest. But apart from these narrow exceptions, the difficult and complex determination about when and to what extent to make FISA information public should rest with the Executive branch, which is best positioned to make informed judgments about the national security risks of doing so.

Daniel J. Rosenthal is an Associate Managing Director in Kroll’s Investigations and Disputes practice, based in the Washington, D.C. office. He serves as an Adjunct Professor at the University of Maryland’s Honors College, where he teaches an award-winning course on national security dilemmas. Mr. Rosenthal previously served in a variety of national security positions in the Obama Administration, including as Director for Counterterrorism with the National Security Council, as Senior Counsel to the Assistant Attorney General for National Security at the Department of Justice, and as a Senior Associate General Counsel for the Director of National Intelligence.

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