The Public Should Have Access to the Surveillance Court鈥檚 Opinions
For decades, a special court鈥攖he Foreign Intelligence Surveillance Court, or 鈥淔ISC鈥濃�攈as issued secret legal opinions authorizing the U.S. government to conduct sweeping programs of electronic surveillance. These opinions have had a profound impact on Americans鈥� rights to privacy, free expression, and free association. But many of them are entirely hidden from public view.
Secret law undermines democracy and the legitimacy of the judicial system鈥攅specially when the law being withheld from the public affects the rights of millions of people. So today, the 老澳门开奖结果 is asking the Supreme Court to order the FISC to publish its secret opinions, redacted only as necessary to prevent genuine harm to national security. The petition鈥攆iled by 老澳门开奖结果 lawyers, former Solicitor General Ted Olson, the Knight First Amendment Institute at Columbia University, and the Media Freedom and Information Access Clinic at Yale University鈥攁rgues that the First Amendment gives the public a presumptive right of access to significant judicial opinions, including those of the FISC.
Today鈥檚 Supreme Court petition has its origins in the disclosures made by Edward Snowden, which exposed profound changes in the role of the FISC in overseeing government surveillance. In 2013, journalists working with documents provided by Snowden reported that, in the years after 9/11, the FISC had secretly authorized the NSA to engage in bulk surveillance. Days later, the 老澳门开奖结果 and co-counsel filed a motion in the FISC seeking access to opinions that had authorized the NSA鈥檚 bulk collection of telephone call records. And in 2016, after the breadth of the FISC鈥檚 secret law had become even clearer, we filed another motion asking for access to the court鈥檚 opinions addressing novel or significant issues raised by the government鈥檚 surveillance applications.
The FISC operates behind closed doors and does not customarily publish its decisions. Although Congress required the government to review significant FISC opinions for declassification and public release when it passed the USA FREEDOM Act in 2015, that review is conducted solely by executive branch officials, not a court. In addition, the government has refused to apply this requirement to FISC opinions issued prior to June 2015.
Publication of the FISC鈥檚 opinions is crucial to public understanding of the nation鈥檚 surveillance laws. The FISC has interpreted those laws in deciding the legality of novel and sweeping surveillance programs, including the government鈥檚 ; the government鈥檚 bulk collection of and metadata; and the government鈥檚 surreptitious installation of . As long as the FISC鈥檚 opinions remain secret, it鈥檚 impossible to know the full extent to which our surveillance laws have permitted intelligence and law-enforcement agencies to collect information on Americans鈥� communications and activities.
But last year, the FISC held that because it is a specialized court that deals mainly with issues related to national security, the public has no First Amendment right to view its opinions鈥攅ven major ones that affect fundamental liberties. Months later, both the FISC and its special court of appeals鈥攖he Foreign Intelligence Surveillance Court of Review (FISCR)鈥攁dopted an even more extreme position, holding that they lack jurisdiction even to consider First Amendment motions like the ones we filed.
As we argue in our petition, the FISC and FISCR were wrong about the First Amendment. Our legal system is founded on the presumption that laws are public. That presumption applies to all judicial opinions containing significant interpretations of law. There鈥檚 no special exception for opinions involving government surveillance and national security. In fact, federal courts around the country routinely publish opinions on those very topics. The FISC鈥檚 significant opinions, which affect the rights of millions, are no different. Like all courts, of course, the FISC may redact its opinions when necessary to conceal legitimate national security secrets. But to justify these kinds of redactions, the government must satisfy the First Amendment鈥檚 stringent standards.
The FISC and FISCR were also wrong about their jurisdiction. Courts around the country routinely consider First Amendment motions for access to their records鈥攎otions just like the ones we filed in the FISC. This makes sense. All courts created under Article III of the Constitution, including the FISC and FISCR, have inherent authority over their own records. If they didn鈥檛, they wouldn鈥檛 be able to function properly, because they could not manage their own proceedings or ensure public access to the judiciary鈥檚 central work鈥攊ts legal opinions.
Federal courts have uniformly held that because they have inherent authority over their own records, they can decide motions for access to those records. The same is true of the FISC and FISCR. They may be more specialized than most courts, but their inherent control over their own opinions gives them the power to consider motions for public access. This was the FISC鈥檚 own position until it reversed course in September 2020.
By placing its opinions outside the reach of the First Amendment, the FISC has deprived the public of information that鈥檚 vital to understanding how the FISC has interpreted the law, and the government surveillance that it has authorized. The Supreme Court must right this ship. The First Amendment gives the public a presumptive right to know how the FISC has shaped the nation鈥檚 laws and our liberties, and it鈥檚 time for the Supreme Court to enforce that right.
This piece was by Just Security.
