Home » News » High court won’t hear challenge to secrecy in FISA courts

By David L. Hudson Jr., published on November 5, 2021

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The U.S. Supreme Court declined to hear a case brought by the American Civil Liberties Union that argued there is a First Amendment-based qualified right of public access to opinions from the Foreign Intelligence Surveillance Act courts that contain significant legal analysis.


Only two justices — Neil Gorsuch and Sonia Sotomayor — voted to hear the case. By Supreme Court rule, it takes four justices for the Court to take a case.


In 1978, Congress passed the Foreign Intelligence Surveillance Act, which created the Foreign Intelligence Surveillance Court (FISC) and the Foreign Surveillance Court of Review (FISCR) that hears appeals of the FISC rulings. These courts oversee electronic surveillance conducted for foreign intelligence purposes, including bulk email collection and warrantless internet searches.


For national security reasons, FISC holds its proceedings in secret and often issues rulings that are not made public. Between 1978 and 2013, FISC released only two of its opinions.


This case began with a motion filed by the ACLU before the FISC in October 2016, asking for “opinions and orders containing novel or significant interpretations of law issued between September 11, 2001, and the passage of the USA FREEDOM Act.” Both the FISC and FISCR courts denied this request.


The ACLU then filed a petition for writ of certiorari to the U.S. Supreme Court. In its petition, the ACLU argued that “a qualified First Amendment right of access applies to significant FISC opinions.”


The Reporters Committee for Freedom of the Press, along with more than 30 other press entities, filed an amicus brief in support of the ACLU. They argued in their brief that “public access to these opinions and orders is an essential safeguard against executive overreach.”


However, the Supreme Court declined review in ACLU v. United States on Nov. 1.


Gorsuch authored a dissent, joined by Sotomayor. In it, he noted that the FISC and FISCR “have come to play an increasingly important role in this Nation’s life” and he questioned the government’s view that the Supreme Court lacks the power to review their decisions.


“On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts.”


Gorsuch concluded:


“Today the Court declines to take up this matter. I would hear it. This case presents questions about the right of public access to Article III judicial proceedings of grave national importance. Maybe even more fundamentally, this case involves a governmental challenge to the power of this Court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is? Respectfully, I dissent.”


The Associated Press reported that legislation adopted in 2015 includes a provision that requires the government to consider releasing significant FISA court opinions. But the law doesn’t apply to opinions written before it was enacted and leaves the review process entirely to the executive branch. The ACLU argued that federal courts, not the executive branch, should decide when opinions that potentially affect the privacy of millions of Americans should be made public.


AP also reported that the Biden administration had opposed Supreme Court review, arguing that not even the Supreme Court had the authority to review the case under federal law. In addition, the administration said much of the material sought in this case already has been made public through requests made under the Freedom of Information Act.


The Associated Press contributed to this report.


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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech(2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).







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