Over the past decade, activists tried to persuade the federal government not to make it clear how secretive a surveillance court’s conclusions can remain hidden from the general public. The Supreme Court has declined to take the case.
The American Civil Liberties Union has filed motions since 2013 to request that the Federal Foreign Intelligence Surveillance Court release secret opinions about the American Civil Liberties Union’s collection of communications data. After Edward Snowden revealed that the National Security Agency was using Section 215 (PATRIOT Act) to collect millions of Americans’ phone and internet records without warrants, allegedly in the context of the war against terrorism.
Many of the FISC’s authorized activities by the Foreign Intelligence Surveillance Act are classified because they permit covert observation and surveillance of persons who might pose a threat to national safety. Another purpose of the court is to ensure that Americans are safe from unauthorized secret surveillance. Snowden’s revelations indicated a break in those protections.
ACLU wanted to find the legal basis for the PATRIOT Act’s use. The group made a new motion following the 2015 amendments to Section 215. And in April of this year, the ACLU, along with the Knight First Amendment Institute at Columbia University and the law firm Gibson Dunn, filed a petition to the Supreme Court asking the justices “to recognize a First Amendment right of public access to the FISC’s opinions—ensuring that the opinions are released with only those redactions necessary to prevent genuine harm to national security.”
The Supreme Court refused to hear the argument in this morning’s order. It’s not uncommon for justices not to elaborate on why they declined it. Justice Neil Gorsuch wrote a significant dissent which was also joined by Justice Sonia Sotomayor.
The federal government has argued that because these reports are so heavily classified, it’s the sole province of the executive branch—not the judicial branch—to determine what may be released. The federal government has argued that, aside from FISC (which has ruled that it is not authorized to determine whether reports should or shouldn’t be made public), the judicial branches doesn’t play any part in this process. Gorsuch disagreed and wrote:
In this case, there are questions regarding the rights of the public to Article III judicial proceedings that have grave national implications. This case also challenges the Court’s authority to inspect the work done by Article III judges on a subordinate Court. What is the point of these issues?
ACLU and Knight First Amendment Institute released a joint communiqué expressing their disappointment with the court’s decision to reject the petition.
Alex Abdo (Knight Institute’s litigation director) writes, “The Supreme Court created a system which makes it extremely difficult for informed public debate on government surveillance.” The public can’t evaluate the surveillance powers the government has in their name without access to the opinions of the FISC. The constitutional right to access other courts’ records should not be granted to the FISC. The Court should establish this principle.
We will continue to depend on whistleblowers.