Rick Zeman writes "'Confidentiality is critical to national security.' So wrote the Justice Department in concealing the NSA's role in two wiretap cases. However, now that the NSA is under the gun, it's apparently not so critical, according to New York attorney Joshua Dratel: 'National security is about keeping illegal conduct concealed from the American public until you're forced to justify it because someone ratted you out.' The first he heard of the NSA's role in his client's case was 'when [FBI deputy director Sean] Joyce disclosed it on CSPAN to argue for the effectiveness of the NSA's spying.' Dratel challenged the legality of the spying in 2011, and asked a federal judge to order the government to produce the wiretap application the FBI gave the secretive Foreign Intelligence Surveillance Court to justify the surveillance. 'Disclosure of the FISA applications to defense counsel – who possess the requisite security clearance – is also necessary to an accurate determination of the legality of the FISA surveillance, as otherwise the defense will be completely in the dark with respect to the basis for the FISA surveillance,' wrote Dratel. According to Wired, 'The government fought the request in a 60-page reply brief (PDF), much of it redacted as classified in the public docket. The Justice Department argued that the defendants had no right to see any of the filings from the secret court, and instead the judge could review the filings alone in chambers."
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