Supreme Court denies ACLU’s request to consider whether secret surveillance court decisions should be open to public scrutiny

The U.S. Supreme Court denied an appeal by the American Civil Liberties Union to review ACLU v. United States, wherein the organization argued the public has a First Amendment right to access secret legal opinions issued by the Foreign Intelligence Surveillance Court, which reviews government requests to institute surveillance of private citizens or entities.

Key Players

The American Civil Liberties Union (ACLU) is a nonprofit organization founded in 1920 “to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States,” according to its website. 

The U.S. Foreign Intelligence Surveillance Court (FISC) is a special federal court established under the Foreign Intelligence Surveillance Act (FISA) of 1978 to provide classified judicial oversight of the intelligence community. According to The Associated Press, FISC was initially created to receive FBI applications for eavesdropping on people suspected of being foreign spies or terrorists. The chief justice of the Supreme Court appoints 11 judges on the FISC and three judges on the Foreign Intelligence Surveillance Court of Review (FISCR), the associated court that reviews FISC decisions. Judges who sit on the FISC and FISCR are drawn from those already sitting on other federal courts.

Further Details

According to the ACLU, in June 2013, a motion was filed with the FISC after The Guardian disclosed a secret order issued under Section 215 of the Patriot Act, authorizing the mass collection of Americans’ call records. The disclosure was based on documents from the National Security Agency (NSA) provided by Edward Snowden, who leaked massive amounts of classified information in protest against NSA, his former employer. Later, the ACLU filed a second motion seeking the FISC legal opinions concerning NSA’s bulk collection of other data, such as internet usage and location information, which can include data of specific individuals, geofence searches, and the broader collection of cell phone GPS data. 

A third motion was filed with the FISC in October 2016 seeking the release of records of all its legal opinions between 2001 and 2015, arguing the court played an increasingly active role in expanding government mass surveillance. But in March 2020, the FISC said the public had no First Amendment rights to view its legal opinions because it is a “specialized court” that deals with national security. 

On April 19, 2021, the ACLU, Knight First Amendment Institute at Columbia University, and Yale Law School’s Media Freedom and Information Access Clinic, filed an appeal to the Supreme Court, challenging the FISC opinion. The appeal argued, “The decisions of the FISC affect the privacy, expressive, and associational rights of every American,” and the First Amendment requires the FISC to publish its legal opinions, redacting only information that conflicts with government interests. 

Appeals from FISC decisions first go to the FISCR and then directly to the Supreme Court. According to the ACLU, the rules for this procedure generally try to ensure that there is a timely and secure process for the courts to hear issues arising from matters that come before the FISC.

Outcome 

Supreme Court rejects appeal

On Nov. 1, 2021, the Supreme Court turned away the ACLU’s appeal. Theodore B. Olson, who served as solicitor general under President George W. Bush, described the Supreme Court’s decision as disappointing, saying that having public access to the FISC legal opinions was “crucial to the legitimacy of the foreign intelligence system, and to the democratic process,” according to the ACLU.

According to Bloomberg, the Supreme Court ruled against the ACLU in an unsigned order on the grounds that the FISC lacked the power to consider assertions that the First Amendment guarantees public access to its opinions. The Biden administration also urged that the appeal be rejected, arguing the Supreme Court did not have the authority to hear the ACLU’s arguments and suggesting that other avenues, such as the Freedom of Information Act, could be used to get the FISC rulings to be made public. 

Supreme Court justices speak out against ruling

Justices Neil Gorsuch and Sonia Sotomayor, not frequently allies on such matters, both dissented, saying they would have heard the case. Gorsuch wrote that the case “presents questions about the right of public access to … judicial proceedings of grave national importance” and “if these matters are not worthy of our time, what is?”

Staff attorney at ACLU questions SCOTUS decision

Patrick Toomey, a senior staff attorney at the ACLU’s National Security Project, said by “turning away this case, the Supreme Court has failed to bring badly needed transparency to the surveillance court and to rulings that impact millions of Americans. Secret court decisions are corrosive in a democracy, especially when they so often hand the government the power to peer into our digital lives.”