Justices asked to review Americans’ access to intelligence court opinions

Civil liberties groups on Monday asked the Supreme Court to consider whether Americans have a right to access decisions handed down by the secretive foreign intelligence court that has played a central role amid the government’s expanded mass surveillance efforts over the past two decades.

The groups, which include the American Civil Liberties Union (ACLU), argued in their brief that the once-narrow role of the court associated with the Foreign Intelligence Surveillance Act (FISA) ballooned following the Sept. 11, 2001, terrorist attacks, and that its portfolio now has “profound implications for individual rights.”

“It’s crucial to the legitimacy of the foreign intelligence system, and to the democratic process, that the public have access to the court’s significant opinions,” said Theodore Olson, a former solicitor general under President George W. Bush, who is signed onto the case.

The case stems from a request the ACLU filed with the surveillance court in October 2016 that sought records from 2001 through 2015, a period when mass government surveillance greatly expanded and which came to light in part from the 2013 disclosures of former government contractor Edward Snowden.

During that time, the court addressed issues such as the lawfulness of the government’s bulk search of email, its warrantless use of internet surveillance and the secret installation of malware on Americans’ computers.

The brief pushes the justices to recognize a limited First Amendment right of access to FISA court opinions — subject to redaction — on issues of public importance, like rulings on the constitutional and statutory scope of government surveillance power.

“Although the [FISA court’s] rulings on these matters may have broad implications for the rights of Americans,” the brief argues, “the public has been entirely deprived of access to them without any judicial determination that such secrecy is justified.”

In 2015, Congress passed the USA Freedom Act, which introduced a degree of transparency on the intelligence court by requiring the federal government to periodically conduct declassification reviews of its rulings.

But that legislation has been criticized by watchdogs as seriously flawed, since it vests review authority exclusively in the executive branch and does not apply to decisions issued before the 2015 law took effect.

Both the FISA court and an appellate panel sided against the ACLU’s 2016 document request, with the appellate court ruling it lacked authority to decide the matter.

These developments prompted the Monday appeal to the Supreme Court by the ACLU, which is joined by the Knight First Amendment Institute at Columbia University and Yale Law School’s Media Freedom and Information Access Clinic.

–Updated at 3:40 p.m.