Supreme Court asked to make foreign intelligence court opinions public

The ACLU and other groups asked the Supreme Court on Monday to consider whether a special court that reviews government requests for electronic surveillance for foreign intelligence purposes must disclose significant opinions that came after 9/11.

The filing marks the first time the Supreme Court has been asked to resolve whether the Foreign Intelligence Surveillance Court must make its secret opinions public — subject to redactions.

The groups, which also include the Knight Institute and the Media Freedom and Information Access Clinic at Yale Law School, are represented by former George W. Bush Solicitor General Theodore R. Olson.

They argue that the FISC sometimes authorizes “broad surveillance regimes” with far-reaching implications for US citizens and “residents who are not the ostensible targets of the government’s surveillance.” Olson wants the Supreme Court to recognize a First Amendment right to access significant opinions.

Olson seeks the documents from between 2001 and 2015 when the government began asking for approval of broad forms of surveillance and when new technologies gave the government more opportunity to conduct sweeping surveillance.

Congress required the government to review significant FISC opinions for public release when it passed the USA Freedom Act in 2015 but the review is conducted solely by executive branch officials.

The lawsuit has extended for years and arises out of a petition filed with the FISC in 2016 seeking opinions and orders issued between September 22, 2001, and the passage of the Freedom Act in 2015. The court has turned away previous requests for public access to its opinions concluding that such access is a matter for the executive branch itself to decide. In rulings from last November, however, the court shut the door on further proceedings concluding that the court didn’t even have the power to consider the lawsuit.

“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,” Olson said in court briefs.

The FISC was established by Congress in 1978 when Congress passed the Foreign Intelligence Surveillance Act.

The court is comprised of 11 district court judges who sit in Washington and are designated by Chief Justice John Roberts. Each serves for seven years on staggered terms. They come from seven judicial circuits and sit for one week at a time on a rotating basis. The current presiding judge is Judge James E. Boasberg, who sits on the US District Court for the District of Columbia.

The government submits applications to the court for approval of electronic surveillance, physical search and other activities for foreign intelligence purposes. Once an application is received, a member of the court’s legal staff evaluates whether it meets legal requirements under FISA.

“Secret court rulings are corrosive in a democracy, especially when they so often hand the government the power to peer into our digital lives,” Patrick Toomey, senior staff attorney at the ACLU’s National Security Project said in a statement. “These opinions are the law and they should be public, not kept hidden where only a secret court and the government know what they mean for our rights.”