The Justice Department Just Lost A Legal Battle Over Public Access To The Secret Surveillance Court

The Foreign Intelligence Surveillance Court of Review found that outside groups had the right to argue for access to information, even if they didn't end up winning in the end.

First Amendment advocacy groups do have the right to argue for access to sealed information from the secretive Foreign Intelligence Surveillance Court, a court ruled Friday afternoon.

The Foreign Intelligence Surveillance Court of Review — the highest of the surveillance review courts, below the US Supreme Court — rejected the Justice Department's argument that outside groups shouldn't be able to petition the FISC at all under the First Amendment to get access to sealed portions of opinions.

The court did not address whether the groups that petitioned for access, the American Civil Liberties Union and the Media Freedom and Information Access Clinic at Yale Law School, can get the information they're after. Instead, the court tackled a critical threshold issue: Whether the groups had standing to come before the court in the first place to ask for that access. Press freedom advocates saw the case as an important test of how much the FISC's mostly closed doors could be open to the public.

The three judges who sit on the Court of Review agreed with a lower court's conclusion that the ACLU and Yale media freedom clinic had shown that their claim of a First Amendment right of access to the information at issue was "judicially cognizable" — that is, that a court could recognize it. The court found that the petitioners had to only clear the "low bar" of showing that their claim wasn't "completely devoid of merit" or "wholly insubstantial and frivolous."

"The government confuses the question of whether the movants have a First Amendment right of access to FISC opinions with the question of whether they have a right merely to assert that claim," the judges wrote.

The judges cautioned, however, that the ACLU and Yale media freedom clinic likely faced an uphill battle in saying that their argument for a First Amendment right of access to FISC opinions was similar to First Amendment right of access claims in other federal courts.

"The FISC is a unique court. It is responsible for reviewing applications for surveillance and other investigative activities relating to foreign intelligence collection. The very nature of that work, unlike the work of more conventional courts, requires that it be conducted in secret," the judges wrote.

Patrick Toomey, a lawyer with the ACLU's National Security Project, said in a statement to BuzzFeed News that they were pleased with the decision.

"The right to access judicial opinions is a cornerstone of our system of justice. While some information in the FISC’s opinions may be legitimately kept secret, the FISC itself is not exempt ... from this bedrock principle. We look forward to finally being able to make our case that the public has a right to see important court decisions concerning the legality of the government’s expansive surveillance activities," Toomey said.

A Justice Department spokesperson did not immediately return a request for comment.

The ACLU and Yale media clinic are pushing for the release of sealed portions of otherwise public opinions related to the government surveillance programs revealed by former National Security Agency contractor Edward Snowden in 2013. A FISC judge initially ruled that the groups didn't have standing to argue for access, but she was reversed by a split decision from the full surveillance court. It was the first time that the full court had decided a case, known as an en banc sitting. The case then went to the Court of Review.

The Court of Review rejected the Justice Department's request to also rule on the underlying question of the ACLU and the Yale media freedom clinic's right of access. The case will now go back down to the FISC for a decision on that issue, which the losing side could then ask the Court of Review to take up.

The case is so novel that lawyers following it previously told BuzzFeed News that the law is unclear about whether the Justice Department could ask the Supreme Court to reconsider the Court of Review's decision. The Court of Review would be allowed, on its own, to ask the justices to weigh in, but didn't say if it planned to do so in its opinion on Friday.

Three federal appeals judges sit on the Court of Review: Judge William Bryson of the US Court of Appeals for the Federal Circuit, Judge Josė Cabranes of the 2nd Circuit, and Judge Richard Tallman of the 9th Circuit. The judges on the Court of Review, like the FISC, are appointed by Chief Justice John Roberts Jr.

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