LegiStorm

Summary:

In response to the disclosure of various National Security Agency (NSA) surveillance and data collection programs, a number of legislative changes to the government's intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Most FISA opinions are classified by the executive branch. Some have raised concerns that this practice permits the government to rely upon "secret law" to justify its activities, and have proposed requiring the public release of legal opinions and orders issued by the FISC and the FISA Court of Review. However, others might regard these proposals as raising separation of powers questions, including the scope of the executive branch's control over national security information. FISA opinions and orders, most of which seem to contain at least some sensitive facts pertaining to national security, involve the legal analysis of sensitive national security information. Requiring the executive branch to release them implicates Article II of the Constitution because it compels the President to disclose potentially sensitive documents, and could override the President's classification decisions. After briefly reviewing the FISC's current procedures, this report will examine the Article II implications of requiring the executive branch to disclose FISA opinions. 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 contentious issue. Some argue that the President possesses a sphere of authority that exists independent of any congressional delegation of authority. While courts have not precisely determined the scope of any such power, it appears that control over access to national security information is largely shared between the legislative and executive branches, rather than belonging exclusively to one branch. For example, courts have indicated that neither one possesses absolute power over classified information. In addition, an examination of historical practice reveals that Congress and the executive branch share power in this area. Congress requires consistent disclosure of sensitive national security information to the relevant intelligence and defense committees. Congress has also regulated control over access to national security information, passing legislation such as the Classified Information Procedures Act (CIPA), FISA, and the Freedom of Information Act (FOIA). Pursuant to these statutes, courts have required the executive branch to disclose information to the public and the judiciary. In fact, no statute regulating classified information has been held by courts to improperly intrude upon the President's power as Commander in Chief. Nevertheless, Congress's power to compel the release of information held by the executive branch might not be absolute. The Supreme Court has observed that the President enjoys some power as Commander in Chief to control access to national security information. In addition, courts have crafted common law privileges that protect the executive branch from revealing certain military secrets. Consequently, there may be a limited sphere of information that courts will protect from public disclosure.