The Foreign Intelligence Surveillance Court largely operates in secret. It doesn’t hold public hearings, its dockets are hidden, and it rarely releases records about its day-to-day work.
Now, the Justice Department is challenging a ruling last year by the surveillance court’s own judges that would allow the public and the press to argue for greater transparency under the First Amendment.
The case goes back to 2013, when former National Security Agency contractor Edward Snowden revealed the existence of the NSA’s bulk collection of Americans’ telephone and internet data. The Justice Department is fighting public access to redacted portions of opinions related to the Snowden leaks, but a ruling for the government would make it harder for the public and the press to raise new arguments under the First Amendment for access to other surveillance court records going forward.
If the Justice Department prevails, “it would in essence shut the doors of the courthouse completely to applicants who seek to get access to the opinions of that court,” said David Schulz, a First Amendment lawyer representing the New York Times in a separate request before the surveillance court for records about former Trump campaign adviser Carter Page.
President Donald Trump last month gave the public a glimpse into the surveillance court’s inner workings when he declassified a document that discussed FISC orders concerning Page. The New York Times has now asked the court to consider releasing records related to the Page warrants. The Justice Department has yet to respond to the Times’ request; the department’s fight against greater access to the Snowden-related opinions began under former President Barack Obama, and has been continued by the department under Trump.
In most federal courts, there’s a presumption that the public has a right to access court records and hearings under the First Amendment. Civil liberties and press freedom groups argue this right extends to opinions issued by the Foreign Intelligence Surveillance Court (or FISC), which reviews government applications to carry out electronic surveillance and other types of spying. The Justice Department disagrees.
Before they can get to the heart of the access question, though, First Amendment advocates have to clear a big hurdle: Showing that they have standing to come before the surveillance court at all to make their First Amendment claim. The FISC's presiding judge, Judge Rosemary Collyer, ruled in January 2017 that they couldn’t get past that first step, but she was reversed in November by the court in a 6-5 decision. It was the first time all of the surveillance court’s judges heard a case together, known as an en banc sitting.
The case is now before the Foreign Intelligence Surveillance Court of Review, the highest body in the surveillance court system below the US Supreme Court. The American Civil Liberties Union and the the Media Freedom and Information Access Clinic at Yale Law School — the groups behind the transparency push — say the public should be able to come before the court and argue information should be public, even if they lose in the end.
“The government’s position here … that the public has no right to even ask for these kind of documents, is really extraordinary, and goes against the grain of decades of how the courts have dealt with public access issues,” said ACLU lawyer Brett Kaufman.
As for the FISC opinions at issue, Kaufman said the public should be able to understand to the fullest extent possible the body of “secret law” that led judges to sign off on the NSA surveillance programs revealed by Snowden.
The surveillance court majority concluded in November that Collyer went too far in finding that the ACLU and media freedom clinic lacked standing because there is no First Amendment right of access to opinions — that at this stage, a judge didn’t need to decide whether the First Amendment right of access existed, only whether a court was “capable” of recognizing that right.
The Justice Department is arguing Collyer got it right. In a brief filed Feb. 23, lawyers for the government wrote that the ACLU and the media freedom clinic didn’t have standing, and that the idea that the First Amendment protected a right of access to FISC proceedings “is clearly without merit.”
The government says there isn’t a tradition of public access in the surveillance court. It would be illogical to open the FISC to the public, “given the national security sensitivities,” the Justice Department argued. Even if a First Amendment right of access did apply, the government wrote, that didn’t mean the court should be able to second-guess the executive branch’s decision to classify information and keep it secret.
A Justice Department spokeswoman declined to comment.
The New York Times didn’t make a First Amendment right-of-access argument in its request for the Carter Page records, but said in a footnote that it would have standing, citing the FISC’s November opinion. Schulz, an attorney with the Yale media freedom clinic, told BuzzFeed News that although the two cases involve different types of records — legal opinions versus warrant applications and orders — the principles were the same.
“We think the en banc decision clearly reached the right result and is consistent with scores of other opinions over the past 30 years recognizing the right of the press to bring claims of access to the courts,” he said. “We don’t think the standing analysis changes just because the FISC has certain secret proceedings.”
The Court of Review hasn’t said if it will hold arguments. The case is so novel that lawyers following it say the law is unclear about whether whoever loses would be able to ask the Supreme Court to reconsider; the Court of Review would be allowed, on its own, to ask the justices to weigh in.
“Legally protected interest”
The Foreign Intelligence Surveillance Court was established in 1978. The 11 judges on the court are chosen by the chief justice of the United States — Chief Justice John Roberts Jr. — from among federal district judges across the country. At least three judges have to live within 20 miles of Washington, DC, where the court is housed. The judges usually rotate weeklong shifts.
There was little litigation over access to the court’s proceedings until the Snowden articles came out in 2013. The FISC eventually released several opinions explaining judges' legal reasoning behind their approval of the government’s requests, with portions redacted based on a classification review by the executive branch. The ACLU and the media freedom clinic asked the court to order a declassification review, and then to do an independent judicial review of redactions proposed by the government.
The First Amendment doesn’t explicitly say the public has a right to access court proceedings, but the US Supreme Court has interpreted it that way. In cases where the access question is unsettled, courts use an “experience and logic” test. The “experience” part tests if there’s a history of proceedings being open to the public, and the “logic” part considers whether allowing public access would help or hurt the court process at issue.
First, though, courts have to decide if the person or group before the court has standing to be there. To have standing, a party has to show they suffered an injury to a “legally protected interest.”
In the January 2017 ruling, Collyer agreed with a 2007 decision by another FISC judge who blocked the ACLU from accessing surveillance court records. In the 2007 decision, the judge found the ACLU failed the “experience” test because there was no “tradition of openness” at the surveillance court, and failed the “logic” test because revealing information about surveillance methods could hurt national security and US relations abroad.
Without a First Amendment right of access, the ACLU and the media freedom clinic didn’t have a “legally protected interest” that would give them standing, Collyer wrote. The surveillance court judges then voted to reconsider Collyer’s decision.
Judge James Boasberg, who sits on the US District Court for the District of Columbia alongside Collyer in addition to their role as FISC judges, wrote for the majority in November that there was a long history of courts allowing parties to challenge the denial of access to judicial and government proceedings, “no matter how novel or meritless the claim may be.”
Boasberg cited other cases where courts found challengers had standing to raise new arguments about access — journalists claiming a First Amendment right to embed with military units or to access a county jail, a historian claiming access to sealed grand jury records, and a death row inmate requesting information about how he would be executed. That the surveillance court’s opinions included classified information did not alter the analysis, Boasberg wrote.
Collyer, joined by four other judges, dissented, sticking with her original findings. The court then asked the Court of Review to weigh in.
The surveillance court’s opinions are more accessible to the public than they were in 2013. The USA Freedom Act, passed in 2015 in response to public outrage following the Snowden leaks, requires the executive branch to do a declassification review of all “significant” FISC and Court of Review opinions and requires public disclosure of opinions “to the greatest extent practicable.”
Still, if the Court of Review reverses the FISC’s November decision, that would limit the public’s ability to argue that the court isn’t releasing opinions as much as it should under the USA Freedom Act or to challenge the government’s redactions, said Stephen Vladeck, a professor at the University of Texas School of Law who focuses on national security and constitutional law.
“There’s a larger tension here, the tension between, on the one hand the well-settled general right of public access to federal judicial proceedings and on the other hand the existence of a court that’s mean to be secret,” Vladeck said. “Especially since the Snowden disclosures five years ago, we’ve been having this awkward conversation about how to reconcile those two things. Now for the first time, the Court of Review is going to weigh in.”