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SCOTUS Maintains Hands-Off Approach to Secretive Government Surveillance Court

by Chuck Sharman

The Supreme Court of the United States (“SCOTUS”) on November 1, 2021, declined to consider a motion to force the federal government’s secretive Foreign Intelligence Surveillance Court (“FISC”) to publish its opinions. The decision not to grant a writ of certiorari drew a stinging dissent from Justices Neil Gorsuch and Sonia Sotomayor—unlikely allies from opposite ends of the ideological spectrum—who wondered, “If these matters are not worthy of our time, what is?”

Created under the Foreign Intelligence Surveillance Act of 1978, FISC has the power to grant search warrants to federal intelligence agencies charged with combatting international espionage and terrorism. Purportedly, because of how slippery those foreign targets can be, the court’s decisions are cloaked in secrecy to avoid tipping off the government’s hand.

But a 2013 document leak by CIA whistleblower Edward Snowden revealed that FISC had authorized the National Security Agency (“NSA”) to train its massive intelligence-gathering powers against ordinary American citizens, collecting Internet and phone records from millions of law-abiding people not suspected of any wrongdoing without their knowledge and with no probable cause.

That same year, the American Civil Liberties Union (“ACLU”) began filing a series of motions to pry loose FISC’s opinions so that the public could fully understand the scope of these clandestine searches like the one run by NSA.

In its most recent filing in April 2021, the ACLU was joined by the Knight First Amendment Institute at Columbia University and the law firm of Gibson Dunn in asking SCOTUS “to recognize the First Amendment right of public access to FISC’s opinions,” while at the same time allowing that such a release would undoubtedly come with “redactions necessary to prevent genuine harm to national security.”

It was this motion that SCOTUS declined to hear. And it was the government’s argument that irked Gorsuch and Sotomayor when it claimed not only that the material shouldn’t be released but also that SCOTUS has no authority over FISC at all—because the court exists as part of the executive branch of government, not the judicial branch.

Calling that an “extraordinary claim,” Gorsuch seemed stunned that the government would even argue “that this Court is powerless to review the lower court decisions even if they are mistaken.”

“[O]n the government’s view,” he concluded, “literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts.”

Knight Institute board member and former U.S. Solicitor General Theodore B. Olson put it this way: “Whether the court’s opinions are published should not be up to the executive branch alone to decide.”

“The FISC shouldn’t be exempt from the constitutional right of access that applies to other courts,” agreed Alex Abdo, the director of litigation at the Knight Institute. “It’s past due for the [SCOTUS] to establish this principle.”

Unfortunately for those interested in government transparency, most SCOTUS justices decided they disagreed.

Sources: Reason, Law & Crime

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