The Justice Department Is Trying To Keep The Secret Surveillance Court As Secret As Possible
A panel of judges will decide if the public and the press are allowed to come before the Foreign Intelligence Surveillance Court to advocate for greater transparency under the First Amendment.
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.
TLB republished this article excerpt from BuzzFeedNEWS.