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David Corn
Washington Bureau Chief, MotherJones.com

Last week, I reported that in the midst of revelations about the National Security Agency’s extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was fighting to keep secret a court opinion that determined that the government on at least one occasion had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.

Last year, after Sen. Ron Wyden (D-Ore.) released a declassified statement noting that the Foreign Intelligence Surveillance Act (FISA) court had found that the US government had engaged in surveillance that had circumvented the law, the Electronic Frontier Foundation, a public interest outfit that focuses on digital rights, submitted a Freedom of Information Act request to the Justice Department for any FISA court opinion or order that had reached such a conclusion. FISA court proceedings and opinions are top secret, and the Justice Department said, in essence, get lost. EFF sued, and in the course of the proceedings, the Justice Department revealed that the FISA court in 2011 had indeed produced an 86-page opinion concluding a government surveillance program was not constitutionally kosher. But the department provided no details regarding the program the opinion covered, and it contended the opinion could not be released because it was classified and the department itself did not have the authority to release a FISA court opinion, under that court’s rules.

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