Supreme Court Declines to Hear First Amendment Challenge to Secrecy of U.S. Surveillance Court
Court鈥檚 Denial Curtails the Public鈥檚 First Amendment Right of Access to Foreign Intelligence Surveillance Court Opinions
WASHINGTON 鈥� Over the dissent of Justices Gorsuch and Sotomayor, the U.S. Supreme Court today denied the 老澳门开奖结果鈥檚 petition for review in 老澳门开奖结果 v. United States, which challenged the secrecy of the Foreign Intelligence Surveillance Court鈥檚 opinions. The 老澳门开奖结果, the Knight First Amendment Institute at Columbia University, the Media Freedom and Information Access Clinic at Yale Law School, and former Solicitor General Theodore B. Olson filed the petition on behalf of the 老澳门开奖结果, arguing that the First Amendment requires the FISC to make its legal opinions public, with only those redactions necessary to serve compelling government interests.
鈥淏y turning away this case, the Supreme Court has failed to bring badly needed transparency to the surveillance court and to rulings that impact millions of Americans. Secret court decisions are corrosive in a democracy, especially when they so often hand the government the power to peer into our digital lives,鈥� said Patrick Toomey, senior staff attorney at the 老澳门开奖结果鈥檚 National Security Project. 鈥淥ur privacy rights rise or fall with the court鈥檚 decisions, which increasingly apply outdated laws to the new technologies we rely on every day. These opinions are the law and they should be public, not kept hidden from Americans whose rights hang in the balance.鈥�
Congress created the FISC in 1978 to authorize and oversee electronic surveillance conducted for foreign intelligence purposes. The FISC鈥檚 role was originally narrow, but today, as the result of legislative changes and new technology, the court evaluates broad surveillance programs 鈥� including programs that involve the mass collection of emails, phone records, and internet browsing data 鈥� that can have profound implications for Americans鈥� privacy, expressive, and associational rights. The Court denied the petition despite the fact that eight former government officials, including John Brennan, James Clapper, and Robert Litt, all of whom served in high-ranking intelligence posts, filed a friend-of-the-court brief urging review of the FISC鈥檚 decisions.
The FISC operates behind closed doors and does not customarily publish its decisions. Although Congress required the government to review significant FISC opinions for 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.
鈥淭he Supreme Court has left in place a system that makes informed public debate about government surveillance exceedingly difficult,鈥� said Alex Abdo, the Knight Institute鈥檚 litigation director. 鈥淲ithout access to the FISC鈥檚 opinions, the public cannot evaluate the powers that the government鈥檚 surveillance agencies are exercising in its name. The FISC shouldn鈥檛 be exempt from the constitutional right of access that applies to other courts. It鈥檚 past due for the Court to establish this principle.鈥�
In motions filed over a period of more than a decade, the groups argued that the First Amendment requires the FISC to make its legal opinions public, with only those redactions necessary to serve compelling government interests. The 老澳门开奖结果 had asked the Supreme Court to review decisions that the FISC and the Foreign Intelligence Surveillance Court of Review issued in and of last year, which held that the courts lack jurisdiction even to consider whether the First Amendment guarantees the public a qualified right of access to the FISC鈥檚 opinions. The filed with the Court in April explained that disclosure of the FISC鈥檚 opinions would 鈥渆ducate the public about government activity that affects individual rights, ensure a more informed public debate about the reach of government surveillance, increase the perceived legitimacy of the FISC and the surveillance it authorizes, and allow other courts to engage with the FISC鈥檚 rulings, to the benefit of those courts as well as the FISC.鈥�
鈥淚t鈥檚 disappointing that the Court failed to take this opportunity to consider the public鈥檚 right to access the FISC鈥檚 legal opinions. The surveillance court often issues decisions that have far-reaching implications for Americans鈥� rights,鈥� said Theodore B. Olson, who served as Solicitor General under President George W. Bush and is now a member of the Knight Institute鈥檚 board. 鈥淚t鈥檚 crucial to the legitimacy of the foreign intelligence system, and to the democratic process, that the public have access to the court鈥檚 significant opinions. Whether the court鈥檚 opinions are published should not be up to the executive branch alone to decide.鈥�
In addition to the former senior government officials noted above, former magistrate judges, media organizations, and Microsoft filed friend-of-the-court briefs earlier this year urging the Supreme Court to hear the case.
Read Justices Gorsuch and Sotomayor鈥檚 dissent here:
Read more about this case here: /cases/aclu-motions-requesting-public-access-fisa-court-rulings-government-surveillance
National Security
Free Speech
老澳门开奖结果 v. United States
National Security
Free Speech
老澳门开奖结果 v. United States
Learn More 老澳门开奖结果 the Issues in This Press Release
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Press ReleaseDec 2024
Free Speech
National Security
老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban老澳门开奖结果 and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON 鈥� Today, the 老澳门开奖结果, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok鈥檚 challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will 鈥渟hutter one of America鈥檚 most popular speech platforms the day before a presidential inauguration.鈥� 鈥淭he Constitution imposes an extraordinarily high bar on this kind of mass censorship,鈥漵aid Patrick Toomey, deputy director of 老澳门开奖结果鈥檚 National Security Project. 鈥淭he Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.鈥� The brief argues that the D.C. Circuit failed to fully address the law鈥檚 profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court鈥檚 decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users鈥� First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government鈥檚 ban on TikTok as a vindication of users鈥� First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign 鈥減ropaganda.鈥� But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its 鈥渕otivating ideology鈥� or 鈥減erspective,鈥� and the government has not come close to meeting that bar here. 鈥淭he government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,鈥� said David Greene, civil liberties director at EFF. 鈥淭he Supreme Court should put the TikTok ban on hold while it considers the DC Circuit鈥檚 erroneous ruling.鈥� Finally, the brief underscores that the government can鈥檛 impose this type of sweeping ban unless it鈥檚 necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government鈥檚 invocation of 鈥渘ational security鈥� as a trump card and failed to hold the government to its burden. 鈥淩estricting citizens鈥� access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,鈥� said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. 鈥淚t would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.鈥� You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
老澳门开奖结果 Statement on New White House Strategy to Counter Islamophobia老澳门开奖结果 Statement on New White House Strategy to Counter Islamophobia
WASHINGTON 鈥� The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, 老澳门开奖结果 and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the 老澳门开奖结果鈥檚 National Security Project: 鈥淲hile this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We鈥檙e profoundly frustrated that the administration didn鈥檛 take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.鈥� -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. 鈥� Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. 鈥� Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government鈥檚 case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi鈥檚 detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man鈥檚 Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man鈥檚 Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. 鈥� This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi鈥檚 case, his claims challenging the government鈥檚 detention of him would fail. 鈥淩eviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we鈥檙e heartbroken for our client that the court got this so wrong,鈥� said Brett Max Kaufman, senior staff attorney with the 老澳门开奖结果鈥檚 Center for Democracy. 鈥淭he government鈥檚 arguments in defense of Mr. Trabelsi鈥檚 detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.鈥� In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court鈥檚 ruling today, and will continue to be litigated on a separate track. 鈥淢r. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,鈥� said Nicole Hallett, clinical professor of law and director of the Immigrants鈥� Rights Clinic at the University of Chicago Law School. 鈥淗e cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.鈥� Mr. Trabelsi is represented by the 老澳门开奖结果, the University of Chicago Law School鈥檚 Immigrants鈥� Rights Clinic, the 老澳门开奖结果 of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.