Correction: This article, as it appeared in the April 26 print issue, incorrectly identified First Amendment attorney Steve Zansberg.
Privacy advocates are asking the Supreme Court to decide whether the nation’s foreign intelligence courts must release their rulings to the public.
In a request filed April 19, the American Civil Liberties Union and two other entities argue that the refusal of the secretive tribunals even to decide whether the constitution mandates an opportunity for even limited public scrutiny of their orders is inconsistent with an array of precedents and the nation’s history. The lawsuit raises questions of whether and how the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review could open up records without undermining their investigations as well as how much the American public should trust government surveillance programs without knowing about their activities.
“The FISC’s and FISCR’s denial of even a forum to assert such a right cannot be reconciled with” an American “tradition” to “promote transparency, accountability, and democratic participation and oversight” or “with the universal understanding that every court controls access to its own records,” said a team of lawyers led by former solicitor general Theodore Olson of Gibson Dunn & Crutcher.
When the U.S. system of judicial oversight of intelligence gathering was established in 1978, FISC and FISCR were tasked with deciding whether to authorize electronic surveillance of individuals considered by the Department of Justice to be possible agents of another country or an entity of a foreign government. After the 9/11 attacks, Congress expanded the courts’ writ to cover mass surveillance programs and, by 2008, authorized FISC to approve warrantless monitoring of phone calls Americans make from within the U.S. to overseas contacts. Eleven U.S. district judges sit on the FISC, while the FISCR is staffed by three other federal judges. All were appointed by Chief Justice John Roberts.
On several occasions in recent years, according to the ACLU, FISC and FISCR have issued orders that “sometimes authorize broad surveillance regimes, with far-reaching implications for U.S. citizens and residents who are not the ostensible target of the government’s surveillance.” For example, the organization’s petition for certiorari says, in 2006 FISC gave the government permission to “collect metadata relating to most phone calls made or received in the United States,” a data trove that includes “billions of phone records relating to millions of Americans,” and, in 2013, prepared an undisclosed opinion that examined the “lawfulness” of that program under both the FISA and the Fourth Amendment.
ACLU also claimed in the petition that FISC has made findings about whether intelligence community practices of scrutinizing Americans’ communications to foreigners for specific words thought related to surveillance targets is lawful and whether a warrant is required before intelligence officers search databases for information about American citizens or residents.
It is essential for the public, ACLU said in the petition, to have access to these records, as well as those at issue in the case in which certiorari has been sought, if constitutional rights of expression, privacy and free association are to be protected. “Public access to these opinions is critical to the legitimacy of the FISC and FISCR, to the legitimacy of the government’s surveillance activities, and to the democratic process,” the entreaty argues. “Access would allow the public to understand the government’s surveillance powers and practices, promote confidence in the FISA system, strengthen democratic oversight, and improve judicial decision-making. Transparency would also give Americans, and Congress, the opportunity to press for reforms.”
Mark Champoux, a partner at Davis Graham & Stubbs and a former principal deputy assistant U.S. attorney general, said FISC and FISCR keeps opinions such as those described by the ACLU secret because they may include information that, if publicized, could harm national security. “Specific FISA orders will have specific information about foreign individuals that the government is trying to gather intelligence on, as well as some discussion of the basis for the government’s belief that the foreign individual is engaged in terrorist activity or other activity that may be a threat to national security,” he said. FISC and FISCR do not release orders because they might “reveal targets of government investigation” and “sources for government intelligence.”
That argument seems to Steve Zansberg, a Denver-based media lawyer who specializes in First Amendment law, to overlook that the opinions can be redacted. “There’s abundant case law on this,” he said. “Courts generally can redact from their rulings and from other pleadings filed in cases involving national security information.” Instead, Zansberg said, “the principal issue is whether or not the public’s right to monitor the conduct of Article III courts extends to the FISA court.” “There’s a qualified First Amendment right of the public to attend those judicial proceedings,” he said. That provision of the Constitution has been held to cover “warrants and things that do result in criminal prosecutions,” which he analogized to the intelligence surveillance orders considered by FISC and FISCR. Zansberg was referring to a series of Supreme Court rulings that have interpreted the First Amendment as requiring courts to allow the public to attend both criminal trials and preliminary proceedings in criminal cases.
ACLU makes clear in its petition that it thinks redaction can be reconciled with freedom of expression, privacy and freedom of association principles. “While national security concerns may sometimes require redaction, the First Amendment right of access is ‘qualified’ precisely to permit such exceptions where justified,” Olson and his colleagues wrote.
Champoux cautioned that it is sometimes considered necessary to keep secret entire court orders. He cited juvenile court proceedings as an example. There are Supreme Court precedents that align with that perspective, too. The court has never held that the U.S. Constitution requires courts to disclose their opinions and orders in all circumstances. While the court has said that provisions of the Bill of Rights generally require open access to criminal case proceedings, it also held in a 1980 case called Richmond Newspapers, Inc. v. Virginia that the question of whether public access to its proceedings is required depends on whether, as a historical matter, they have generally been open to citizens and to the press and, second, on “whether public access plays a significant positive role in the functioning of the particular process in question.”
ACLU’s petition also argues that, if neither FISC nor FISCR can decide the question of First Amendment access to their rulings, any such constitutionally compelled opportunity for public scrutiny is negated by a technicality. “Can you have a constitutional right that can’t be enforced in a court of law?” Zansberg rhetorically asked, referring to this argument.
Champoux sees this argument as one for Congress, and not courts, to resolve. “Congress, by statute, creates the court and sets out the jurisdiction of the court and what the FISA court has said is we don’t have jurisdiction to consider constitutional claims,” he said. There would be precedent for Congress to consider the question of whether Americans should be able to see the written decisions of FISC and FISCR. Congress also delineated the jurisdiction of the federal bankruptcy courts, district courts, and circuit courts of appeal. All routinely release their orders and opinions to the public.
FISC has published only two opinions since 1978. In 2015 Congress ordered the executive branch to decide whether additional FISC and FISCR opinions should be declassified and to consider, as a factor to influence the determination, whether any of those opinions discuss “a significant construction or interpretation of any provision of law.” The law specifies that those that do contain such legal expositions should be opened to the public “to the greatest extent practicable.” According to a 2016 opinion issued by a Washington, D.C.-based federal judge, the government believes this mandate does not apply to any FISC or FISCR opinions or orders issued before 2015, can be waived, and is subject to a more demanding level of scrutiny than claims for public access to records made in other courts.
The justices have never reviewed any FISC or FISCR decision, although the two intelligence courts have been in operation for more than 40 years.