DOJ Keeps FISA Warrants Under Wraps for 25 Years or More

As part of their responses to PPSA’s FOIA requests, the Department of Justice and Department of State recently produced their own derivative classification guides. These protracted documents have hundreds of different classification rules, which might explain part of the prolific growth in derivative classifications that PPSA has previously reported on.
 
But even among this maze of rules, one item stands out: Government classification rules show that the use of or application for a FISA warrant, in any case, is automatically classified as “secret,” a level of protection supposed to be reserved for when a release can be “expected to cause serious damage to national security" if made public. This means the use of FISA in any case will, at a minimum, remain locked away for 25 years. And worse, these qualify for an exception to automatic declassification, and so the government can extend those blackouts indefinitely.
 
“The use of FISA warrants issued against any American for any reason is secret,” said Gene Schaerr, PPSA general counsel. “And given previous scandals, a multitude of abuses could well be hidden in these blanket classifications.”
 
It is easy to understand why the government would want to classify many FISA warrants. Revealing them could expose ongoing efforts to track Chinese spies, counter Russian saboteurs, and catch possible Iranian assassins. There is also something to the customary government concern about protecting “sources and methods.” But does it make sense for the government to hide every FISA warrant? After all, these guides show that federal agents already make the determination to classify other potentially more important information on a case-by-case basis, including government passwords, safe combinations, and attempted or successful cyberattacks on systems containing national security information.
 
Schaerr said:
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“As we saw in the Crossfire Hurricane scandal, the rights of all Americans can be implicated when the FISA process is abused. At the very least, this ‘classify first, ask questions later’ approach calls for the House to follow the example of the U.S. Senate and to allow for more House staffers to receive security clearances that enable them to advise House Members on the soundness of the government’s use of FISA warrants. This knowledge gap calls out for more Congressional oversight.”