Last month, the secret Foreign Intelligence Surveillance Court鈥攌nown as the FISC鈥攖o publish its legal opinions allowing the government to track the phone calls of essentially all Americans. Those secret opinions are critical to the ongoing debate about the NSA鈥檚 surveillance powers, but, perhaps even more importantly, they are the authoritative legal interpretations of a public law. Like the law itself, those opinions should be public. Given that fact, we were disappointed when, on July 5, , arguing that the public is not entitled to read the FISC鈥檚 opinions.
Think about that for a minute. Our government believes that opinions of a federal court deciding what a controversial federal law actually means and whether sweeping surveillance conducted under that law is constitutional should be secret. And we鈥檙e not just talking about keeping secret the names of the government鈥檚 surveillance targets. The government鈥檚 filing was clear: The public doesn鈥檛 have the right to read even the FISC鈥檚 legal analysis.
Here is how we countered the government鈥檚 argument in :
The First Amendment guarantees the public a qualified right of access to those opinions, because judicial opinions interpreting constitutional and statutory limits on governmental authorities鈥 including those relevant to foreign-intelligence surveillance鈥攈ave always been available for inspection by the public and because their release is so manifestly fundamental in a democracy committed to the rule of law.
The government鈥檚 contrary view鈥攖hat legal opinions of an Article III court controlling the constitutional rights of millions of Americans may forever be denied to the public, even if any legitimate interest in secrecy has expired or can be accommodated鈥攊s wrong. Indeed, if the government succeeds in depriving the public of the tools necessary to understand the laws passed by its elected officials, it will have eroded the foundations of our democracy. The government鈥檚 theory affects more than the public鈥檚 right to this Court鈥檚 opinions; its reasoning would likewise deny the public a right of access to the opinions of courts sitting in review of those opinions, whether issued by the Court of Review or even the Supreme Court of the United States. That result would defeat democratic oversight and undermine public confidence in our legal institutions.
Our motion is now fully briefed and ready for the FISC to decide. Stay tuned.
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