Former Government Officials, Media Organizations, Microsoft, Former Magistrate Judges File SCOTUS Briefs Challenging Secrecy of U.S. Surveillance Court

Filers Urge Supreme Court to Hear Case on Public Right of Access to Foreign Intelligence Surveillance Court Opinions

May 27, 2021 3:45 pm

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WASHINGTON — Former government officials, former magistrate judges, media and civil society organizations, and Microsoft are filing amicus briefs with the U.S. Supreme Court today urging it to hear a case challenging the secrecy of the Foreign Intelligence Surveillance Court’s opinions. The petition was filed last month by the American Civil Liberties Union, the Knight First Amendment Institute at Columbia University, the Media Freedom and Information Access Clinic at Yale Law School, and former Solicitor General Theodore B. Olson. The groups argue that the First Amendment requires the FISC to make its legal opinions public, with only those redactions necessary to serve compelling government interests.

The brief by former government officials — including John Brennan, James Clapper, and Robert Litt all of whom served in high-ranking intelligence posts — argues: “[T]he FISC appears to start from the premise that recognizing a qualified right of access will undermine secrecy in ways that necessarily harm the Nation’s foreign intelligence efforts. That reflects a short-sighted, unrealistic view of the world. Too much secrecy itself can set back intelligence operations. … And excessive secrecy risks the type of unauthorized disclosures that have framed public debate about government surveillance efforts for much of the past decade.”

Congress created the FISC in 1978 to authorize and oversee electronic surveillance conducted for foreign intelligence purposes. The FISC’s role was originally narrow, but today, as the result of legislative changes and new technology, the court evaluates broad surveillance programs — including programs that involve the collection of emails, phone records, and internet browsing data — that can have profound implications for Americans’ privacy, expressive, and associational rights.

The FISC operates behind closed doors and does not customarily publish its decisions. Although Congress required the government to review significant FISC opinions for public release when it passed the USA FREEDOM Act in 2015, that review is conducted solely by executive branch officials, not a court. In addition, the government has refused to apply this requirement to FISC opinions issued prior to June 2015.

Drawing on their own experience, the magistrate judges argue in their brief that making FISA court opinions publicly available is feasible, need not come at the expense of national security, and is critical to the development of the law and to maintaining public trust.

Briefs were filed today, or are expected to be filed later today, by:

  • Former senior government officials, including Michael Bahar, former general counsel for the House Permanent Select Committee on Intelligence; John O. Brennan, former director of the Central Intelligence Agency; Lt. Gen. James R. Clapper, former Director of National Intelligence; James X. Dempsey former member of the Privacy and Civil Liberties Oversight Board; Timothy H. Edgar, former director for privacy and civil liberties for the National Security Council; Sharon Bradford Franklin, former executive director of the Privacy and Civil Liberties Oversight Board; Robert S. Litt, former general counsel for the Office of the Director of National Intelligence; and Donald B. Verrilli, Jr., former Solicitor General; represented by the law firm of Kaplan Hecker & Fink;
  • The Reporters Committee for Freedom of the Press and 34 media organizations;
  • Former magistrate judges, including Judge James Orenstein, former United States Magistrate Judge for the Eastern District of New York; represented by the law firm of Jenner & Block;
  • Microsoft Corporation;
  • The Brennan Center for Justice and the Americans for Prosperity Foundation;
  • The Project for Privacy and Surveillance Accountability; and
  • Professor Stephen Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law.

The ACLU’s petition asks the Supreme Court to review decisions that the FISC and the Foreign Intelligence Surveillance Court of Review issued in September and November of last year, which held that the courts lack jurisdiction even to consider whether the First Amendment guarantees the public a qualified right of access to the FISC’s opinions. The petition explains that disclosure of the FISC’s opinions would “educate the public about government activity that affects individual rights, ensure a more informed public debate about the reach of government surveillance, increase the perceived legitimacy of the FISC and the surveillance it authorizes, and allow other courts to engage with the FISC’s rulings, to the benefit of those courts as well as the FISC.”

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