Supreme Court asked to reveal secret surveillance rulings

WASHINGTON — Last year, six months before he was nominated to be attorney general, Judge Merrick Garland wrote a forceful opinion on the importance of openness in the justice system.

Court decisions, he said, are public documents. “Indeed,” he wrote, “since at least the time of Edward III, judicial decisions have been held open for public inspection.”

“At bottom,” he wrote, this “reflects the antipathy of a democratic country to the notion of ‘secret law,’ inaccessible to those who are governed by that law.”

Last month, the Justice Department led by Garland told the Supreme Court that the public had no right of access under the First Amendment to secret decisions issued by a federal court.

The justices are set to consider whether to hear that case, which was brought by the American Civil Liberties Union and concerns decisions issued by the Foreign Intelligence Surveillance Court, at their private conference Oct. 8.

The case that Garland decided last year, writing for a unanimous three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia, and the one before the justices both involved electronic surveillance, but they concerned different laws and different legal theories.

His general point about secret law, though, provides an important framework, according to a brief supporting the ACLU in the new case filed by two groups that do not always agree — the Brennan Center for Justice, which leans left, and the Americans for Prosperity Foundation, a libertarian group affiliated with the Koch family.

“Secret law of all types causes several concrete harms that are antithetical to democratic norms,” their brief said. “Secret law prevents the public from understanding and shaping the law and thus inhibits democratic accountability; disables checks on governmental abuses of the law; and weakens the quality of the law itself.”

The surveillance court, created by the Foreign Intelligence Surveillance Act of 1978, or FISA, rules on government surveillance requests and programs in the context of national security. It generally hears from only one side — the government — and much of its work is of necessity secret. But its interpretations of federal laws can be enormously consequential.

After Edward Snowden’s leaks in 2013 disclosed that the court had authorized the bulk collection of logs of all Americans’ phone calls and emails under the USA Patriot Act, Congress passed a new law, the USA Freedom Act of 2015. Among other things, it required executive branch officials to make public, “to the greatest extent practicable,” decisions from the intelligence court that included significant legal determinations.

Critics say that is not enough, for two basic reasons. Under separation-of-powers principles, they say, courts rather than the executive branch should decide whether judicial opinions ought to be made public. And the 2015 law, at least according to the executive branch, does not apply to decisions issued before its enactment.

The ACLU filed a motion in the FISA court, seeking disclosure of major decisions issued between the Sept. 11, 2001, attacks and the 2015 law and arguing that the FISA court itself should decide whether disclosure of its decisions was required by the First Amendment.

“These court opinions are vitally important,” said Patrick Toomey, a lawyer with the ACLU. “They can have far-reaching consequence for Americans’ privacy and free expression rights. It shouldn’t be up to the executive branch whether the public has access to them.”

A specialized appeals court ruled last year that the FISA court lacked the power even to consider whether there is a right of access to its decisions under the First Amendment. Although other federal courts routinely consider requests to unseal their own records, the appeals court ruled that the FISA court could not consider the constitutional question before it because Congress had not granted it the power to do so.

The jurisdictional issues in the case are tangled, but the larger questions it presents are not.

In a supporting brief, former government officials — including James Clapper, a former director of national intelligence, and John Brennan, a former CIA director — wrote that excessive secrecy can result in indiscriminate and destructive leaking.

“Too much secrecy, in other words,” they wrote, “puts at risk the very intelligence operations that require secrecy to be effective.”

(The Reporters Committee for Freedom on the Press and 34 media groups, including The New York Times Co., also filed a brief supporting the ACLU in the case, American Civil Liberties Union v. United States, No. 20-1499.)