Shine a light on secret court decisions
A secret court created by Congress to curb abuses of national-security surveillance may come under the review of the U.S. Supreme Court for the first time. The American Civil Liberties Union has filed a petition with the high court, also signed by former U.S.
Solicitor General Theodore B. Olson, asking the justices to overturn decisions made by judges in the secret Foreign Intelligence Surveillance Act court system. The decisions rejected the ACLU’s lawsuit claiming a First Amendment right of access to FISA court rulings affecting the rights of Americans.
The Foreign Intelligence Surveillance Court was created by Congress in 1978 following extensive hearings that revealed abuses by the nation’s intelligence agencies, including secret wiretaps of Americans. “The FISC’s role was originally narrow,” the ACLU’s petition states, “but today, as a result of legislative changes and new technology, the court evaluates broad programs of surveillance that can have profound implications for Americans’ privacy, expressive, and associational rights.” It’s not hard to imagine how such surveillance powers could be abused. Protected by total secrecy, individuals working inside the government’s intelligence agencies could collect and scrutinize the electronic communications of any American, and the electronic communications of that person’s “friends” or “followers,” on the thinnest pretext of suspicion of a potential threat to national security.
Only the government appears before the FISA court, with no opposing counsel present. That makes it impossible for the public to know what’s happening. It was only because of leaks by national security contractor Edward J.
Snowden that the public learned in 2013 that the FISA court had interpreted the USA Patriot Act to allow the warrantless bulk collection of Americans’ phone calls and emails, a decision later contradicted by a federal appeals court in the regular system. Some reforms have been made, including a law that requires significant rulings by the FISA court that interpret surveillance law to be made public, most of the time, with whatever redactions the government thinks are necessary. FISA court decisions may be reviewed, in secret, by a panel of appellate court judges.
The ACLU argues that the reforms are inadequate because the government is in complete control of what information is released, and Americans’ rights are affected by decisions to which the public has no access. Ted Olson, a well-known Republican lawyer who successfully argued the Bush v. Gore case before the Supreme Court in the razor-close 2000 election, says he would be willing to argue the ACLU’s case if the justices agree to accept it.
Olson has long experience on both sides of the argument.
A 1984 memo that he wrote as head of the Office of Legal Counsel provided legal justification for National Security Agency surveillance of newer technologies such as satellite transmissions, even if the spying inadvertently scooped up the communications of Americans without a warrant. The New York Times and the ACLU brought separate legal actions to force the public disclosure of that memo, but the federal courts rejected those lawsuits. The memo is still secret.
Cases involving national-security surveillance often bring together a coalition of right and left.
All Americans should be concerned that government secrecy can shield abuses by the government.
The FISA court was created for the purpose of keeping an eye on the intelligence services.
Now the question is, who’s watching the FISA court?