OAKLAND, Calif. (CN) - A privacy watchdog group and the Justice Department spun their collective wheels at a hearing Tuesday over whether to release the secret authorization of domestic telephone surveillance.
The Electronic Frontier Foundation had sued the department under the Freedom of Information Act in 2011 for access to opinions in which the Foreign Intelligence Surveillance Court found some of the National Security Agency's surveillance unconstitutional.
Eighteen months later, NSA whistleblower Edward Snowden leaked the first batch of documents to media outlets and shed further light on the NSA's surveillance tactics. This led the DOJ to declassify and release
hundreds of pages of documents related the government's secret interpretation of Section 215 of the Patriot Act - which it uses to justify spying on millions of Americans' phone conversations.
While the Justice Department has periodically released documents in the year since the first Snowden leak, the EFF told U.S. District Judge Yvonne Gonzalez Rogers at a hearing Tuesday that the department has not yet responded to the group's entire FOIA request.
"This is a unique FOIA case in that we can go back and look at the government's responses in light of each new discretionary release," EFF staff attorney Mark Rumold said. "DOJ continues to hide behind 'top secret' and 'severe damage to national security,' but it could have redacted and released significant responses about the FISC court and the need for Section 215 of the Patriot Act."
One of the documents Snowden leaked revealed that the NSA ordered Verizon to turn over call metadata, but Rumold highlighted the public revelation by an NSA employee that AT&T and Sprint had also been served with Section 215 orders. The government maintains the employee was actually an independent contractor - and no longer under contract with the NSA - who was speaking hypothetically.
Though Rumold called the government's stalling "bad faith," he said the EFF is not seeking sanctions at this time. Instead, he urged Rogers to conduct review of records in camera and rule based on the consistent public interest into NSA surveillance.
"Bad faith comes from the fact that elements in the documents should never have been classified to begin with," Rumold said. "Some of the information is already widely available on the Internet - where's the harm in releasing it?"
Justice Department senior counsel Steven Bressler stressed that the government is doing all it can to be responsive to EFF's FOIA request, but that national security comes first.
"Leaks to the press don't declassify documents," Bressler told the court. "The government is doing a line-by-line review of thousands of documents to determine what can be released without doing any more damage to the United States."
As for EFF's call for redaction and release, Bressler said that "isn't how DOJ works."
"A sophisticated reader could determine facts from the redactions," Bressler said.
An in camera review by Rogers of the secret opinions is also unnecessary since the department provided her with the classified declarations of senior intelligence officials needed to make her decision, Bressler added.
Rogers said her decision would come at a later date.