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.
The government fought the request in a remarkable 60-page reply, some 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. “Confidentiality is critical to national security,” the government wrote.