The historic first argument before the Foreign Intelligence Surveillance Court of Review took place this past Monday morning (one official declared that the argument lasted most of the morning), and apparently Solicitor General Ted Olson was unable to satisfy the court on every point.
At any rate, I'm told, the court directed the Justice Department to file a supplemental brief responding to what one source termed "a number of questions."
The supplemental brief is expected next week; it is unclear if and when we will get a redacted copy. However, the signs are good in that regard, because the Review Court has told Sens. Patrick Leahy, D-Vt., Charles Grassley, R-Iowa, and Arlen Specter, R-Pa., it will make sure they get an unclassified copy of its opinion.
The three had written to Chief Judge Ralph Guy seeking not only the opinion but also an unclassified transcript of Monday's argument. They argued that the transcript, along with unclassified copies of any opinions or orders, "may assist the Congress in exercising appropriate oversight of the Executive Branch, this Article III court and the implementation of the USA PATRIOT Act."
In his reply, dated Sept. 11, Guy promised, "As soon as we have an opinion completed, I will be sure to see that you get an unclassified copy. An unclassified copy of the hearing transcript will be sent at the same time."
An interesting footnote: Guy was the U.S. attorney in Michigan some 30 years ago and oversaw the indictment of three individuals charged with bombing the CIA office in Ann Arbor. The defendants challenged the warrantless surveillance that had been carried out, and ultimately the case was decided by the Supreme Court in a landmark ruling against the government, U.S. vs. U.S. District Court, or sometimes referred to as the Keith case. In that ruling, Justice Lewis Powell essentially invited the Congress to construct legislation that became FISA.
Judge Guy told me, "In some respects, I've got a 30-year history" with these issues. He hastened to add, "No particular expertise, but a lot of history." Guy refused to say anything about this week's hearing but chuckled about the fact that after four years on the review court he finally had something to do. Up till now, he said, it's been "like being ambassador to the lost continent of Atlantis."
Wanted: Sunshine and Oversight
At a lively, if non-newsy hearing before the Senate Judiciary Committee this week, a couple of witnesses called for more light to be shed on the proceedings of both the Review Court and the lower FISA Court.
Syracuse University Professor William Banks lamented how little information is available on the whole system to outsiders. He noted that only bare-bones information is made available, in the form of an annual release of "a simple aggregate number of applications each year with no further detail. Why not report with appropriate breakdowns for electronic surveillance and searches, numbers of targets, numbers of roving wiretaps, how many targets of FISA were prosecuted, how many were U.S. persons? The reports should also be available more often than annually."