First Amendment Groups Press Supreme Court For Access To Surveillance Court Opinions

By Nina Totenberg :

First Amendment groups are asking the U.S. Supreme Court to make public major decisions authorizing government surveillance, opinions that until now have remained almost secret.

For years, the ACLU and other groups have maintained that the public has a First Amendment right to see major decisions of the Foreign Intelligence Surveillance Court, decisions that authorize everything from surveillance of suspected spies and terrorists to metadata mining aimed at ferreting out potential terrorist plots, including those that involve contacts between foreigners and American citizens.

But the FISC and its supervisory appeals panel ultimately ruled against any public access. Now a coalition of First Amendment groups is asking the Supreme Court to review those decisions of the intelligence courts. Among those appealing is Theodore Olson, who served as solicitor general in the Bush administration at the time of and after the attacks of Sept. 11, 2001, and whose wife, Barbara, was among those killed on American flight 77, the plane that hit the Pentagon.

The positions taken by these intelligence courts “have just gone too far,” Olson, who is on the board of the Knight First Amendment Institute at Columbia University, said in an interview with NPR. They “can’t create a constitutional court and then insulate that court from any public access … creating blanket immunity from public review of its opinions.”
Olson, who is counsel of record in the case, argues that the public is entitled to have access to opinions that include “significant interpretations” of federal law and constitutional provisions, opinions that “sometimes authorize broad surveillance regimes, with far-reaching implications for U.S. citizens.”

Political groups on the right and left have voiced increasing suspicions about the way surveillance data is collected. Privacy advocates have long criticized the FISC as a rubber stamp for what they view as the government’s overly intrusive data collection, with most people having no idea how much of their private information has been “harvested.”

FISC orders are highly classified, but the First Amendment groups maintain that legal opinions enunciate principles of law, and can be scrubbed of classified information. Allowing such access, the groups argue, is in the tradition of the constitutional system of open courts. It would “allow the public to understand the government’s surveillance powers and practices, promote confidence in the FISA system, strengthen democratic oversight … and would also give Americans, and Congress, the opportunity to press for reforms.”

Monday’s filing is the culmination of more than a decade of litigation. The next step is likely to be a response from the Biden administration, followed by a decision by the justices on whether to grant review in the case. It takes the votes of only four justices to agree to hear arguments in a case, but the justices are generally loath to intervene in intelligence matters.