Secret Surveillance Warrants Remain Secret

Since nearly a decade, American Civil Liberties Unions (ACLU), has tried to break the seal that has been enclosing the foreign intelligence warrants court’s operations. The Supreme Court rejected an ACLU petition in November, arguing that the public is entitled to view classified court decisions under the First Amendment.

Foreign Intelligence Surveillance Court approved electronic surveillance, physical searches and requests for business records that “target a foreign country or its agent.” The warrant-seeking agencies must state that they are seeking foreign intelligence collection for a “significant purpose”. They also need to follow “minimization”, which is designed to reduce the amount of U.S. citizens and legal residents.

The ACLU is seeking to release FISC opinions concerning the National Security Agency’s massive collection of telephone records and internet data of Americans since 2013. Edward Snowden, a whistleblower, revealed the truth about this controversial practice. It was inspired by a controversial interpretation that was made of PATRIOT Act provisions, which had expired in 2015. Congress later approved the USA FREEDOM Act in 2015. However, it did not renew those provisions and impose new restrictions on bulk collecting telecommunication metadata.

The Foreign Intelligence Surveillance Act (FISC) requires that the FISC protect Americans against unjustified federal snooping. Without seeing the court’s rulings, it can be difficult to judge how effective that court does this. The Justice Department claims that these opinions are confidential and only the executive can release them.

Justice Neil Gorsuch and Justice Sonia Sotomayor voted against the ACLU’s petition. They noted that the Supreme Court had declined to consider the ACLU’s request. Gorsuch was skeptical of the argument by the government that courts are not authorized to release FISC opinions.

He wrote that “This case raises questions regarding the rights of the public to access Article III judicial proceedings in cases of national significance.” This case may be even more important because it involves a government challenge to the Court’s power to examine the work of Article III judges at a subordinate Court. What is the point of these issues?