The Supreme Court will not weigh in on whether the public should have access to decisions issued by the federal government’s secret court that signs off on warrants to spy on Americans.
The high court on Monday rejected the American Civil Liberties Union‘s attempt to review Foreign Intelligence Surveillance Court opinions between 2001 and 2015 related to the post-9/11 “global war on terrorism” begun under former President George W. Bush.
The ACLU in 2016 filed a motion to view the opinions, arguing the First Amendment requires the court to make them public. But an appellate court ruled last year that no court has jurisdiction to consider their argument and the justices’ decision on Monday left this ruling in place.
Conservative Justice Neil Gorsuch and liberal Justice Sonia Sotomayor dissented, writing that the Supreme Court should consider the case because the government is challenging the high court‘s ability to review lower court 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,” Mr. Gorsuch wrote.
The justices also point out that the case centers on public access to governmental decisions of “grave national importance.”
“If these matters are not worthy of our time, what is?” Mr. Gorsuch asked.
Congress established the FISC in 1978 when it passed the Foreign Intelligence Surveillance Act, allowing the court to authorize and oversee government officials’ electronic surveillance or physical search of citizens for foreign intelligence purposes.
Legislation and technological developments have since transformed the court’s purpose, which now includes evaluation of more surveillance efforts, including mass surveillance of Americans’ phone records, internet history and emails.
The FISC came under fire in 2013 when Edward Snowden, a former contractor of the National Security Alliance, released classified information about the court’s involvement in permitting the government to secretly track millions of Americans’ phone records. Mr. Snowden is facing espionage charges but was granted asylum in Russia after fleeing the U.S.
Two years later, Congress passed the USA Freedom Act in 2015 requiring the government to review FISC opinions for public disclosure.
The review is led by executive branch officials, which attorneys from the ACLU and the Knight First Amendment Institute at Columbia University argued is unfair.
Knight Institute member Theodore Olson, who served as solicitor general under Mr. Bush, said on Monday that FISC “often issues decisions that have far-reaching implications for Americans’ rights.”
“Whether the court’s opinions are published should not be up to the executive branch alone to decide,” Mr. Olson said in a statement.
The ACLU petitioned the high court in April to review its case, claiming disclosure of the opinions would provide information to the public about government actions affecting individual rights, add to public debate over government surveillance and allow other courts to engage with FISC rulings.
“Access would allow the public to understand the government’s surveillance powers and practices, promote confidence in the FISA system, strengthen democratic oversight, and improve judicial decision-making,” Mr. Olson said in court filings.
The Biden administration urged the high court to ignore the ACLU appeal, claiming the group had other avenues to obtain access to the opinions.
ACLU attorney Patrick Toomey said Monday that FISC “opinions are the law and they should be public, not kept hidden from Americans whose rights hang in the balance.”
“Secret court decisions are corrosive in a democracy, especially when they so often hand the government the power to peer into our digital lives,” Mr. Toomey said in a statement.
The Supreme Court’s decision also comes roughly one month after the Justice Department inspector general released a report finding the FBI failed to support claims it made in almost 200 FISA applications submitted over a six-year period.
In the report, DOJ Inspector General Michael E. Horowitz said the FBI ignored its own Woods Procedure — the set of rules the bureau follows to ensure accuracy in its applications to monitor Americans under the Foreign Intelligence Surveillance Act.
He uncovered at least 183 FISA applications between 2014 and 2019, in which the Woods File — the documentation intended to back up the FBI‘s argument for surveillance — was missing, destroyed or incomplete.
“Given the FBI‘s reliance upon its Woods Procedure to help ensure the accuracy of its FISA applications, we believe the missing Woods File represents a significant lapse in FBI‘s management of its FISA program,” Mr. Horowitz wrote in his 60-page report.
The FBI‘s handling of warrants under the FISA has been closely scrutinized since 2016 when the bureau obtained a warrant to snoop on Carter Page, a Trump campaign official. That warrant was largely based on the unsubstantiated and now-discredited Steele dossier and included at least one piece of information fabricated by an FBI lawyer.
The warrants, Mr. Horowitz said, are one of the most “intrusive” tools the agency uses to investigate terrorism, espionage and other national security threats.
• Emily Zantow can be reached at ezantow@washingtontimes.com.
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