Because the President has said he welcomes discussion about the recent NSA surveillance revelations, I thought you'd want to know about
a motion EFF brought in FISA court, which is being opposed by the government in a rare public document [PDF] -- relevant, EFF says, to the latest news. And there is also an
ACLU motion [PDF] as well, requesting "that this Court unseal its opinions evaluating the meaning, scope, and constitutionality of Section 215 of the Patriot Act."
EFF asked the government for a copy of "any written opinion or order" of the FISA court in which the court held that the surveillance conducted under the FISA Amendments Act (2008 version) "was unreasonable under the Fourth Amendment" or had "circumvented the spirit of the law." After some of the usual back and forth in discovery, the government revealed that it had found one such [!], but it refused to provide it on the grounds that it had no authority under FISC rules "to release FISC opinions to a FOIA requester or any other member of the public without a FISC order." So that's why EFF is now approaching the court itself, asking for a ruling that the government is allowed to provide it. The ACLU asked, and was denied, once before for the same relief it now is asking for, but now, after the latest events and the President's encouragement of public debate saying it's healthy for a democracy, it is renewing its request. The three filings being public give us a window into the secretive court that we would not otherwise have.
It turns out that FISA court proceedings are secret by default, but there can be some public access, as the DOJ explains: The opinion Movant seeks cannot be released by the Government not only because it is classified but also because it is under this Court’s seal. As Judge Bates has explained, “[t]he FISC is a unique court,” whereas “[o]ther courts operate primarily in public, with secrecy the exception; the FISC operates primarily in secret, with public access the exception.” In re Release, 526 F. Supp. 2d at 487-88. The FISC maintains this operational secrecy because, unlike any other court, its “entire docket relates to the collection of foreign intelligence by the federal government.” Id. at 487. I am not, obviously, an expert in this area, so I have no idea whose argument is stronger, but I know I'd like to know if the surveillance is legal or not, and that would require comparing the order that found otherwise with the facts of the current surveillance, as described confusingly in the media (so far). I don't really see how there can be a meaningful debate, if we don't know at least that much. So in that spirit, I'm showing you the filings, and I'll work on doing them as text, so you can be fully informed.
Update:
Here's the ACLU motion, as text. You can find the EFF's filing embedded on this EFF page; and then the DOJ's
response is similarly here, so please read them there or in the PDF. The EFF brief is a TIFF, and I don't have time today to do it as text by hand.
Update: The FISA court has granted EFF's motion [PDF]. EFF's account is here:
The victory today was a modest one. The Court didn't order disclosure of its opinion; it just made clear, as EFF had argued, that the FISC's own rules don't serve as an obstacle to disclosure of the opinion. The FISC also clarified that the executive branch cannot rely on the judiciary to hide its surveillance: the only thing obstructing the opinion from the public's review is the executive branch's own claims that it can hide its unconstitutional action behind a veil of classification.
The effect of the Court's decision could be more significant. In earlier arguments, the Department of Justice tried to pin the blame for withholding the opinion in its entirety on the FISC. But, with that argument gone, DOJ should have no choice but to release, at the very minimum, parts of the opinion describing the government's unconstitutional practices.
EFF isn't alone in fighting for the release of these documents. A bipartisan coalition of Senators today announced legislation that would require the Attorney General declassify significant FISC opinions, a move they say would help put an end to "secret law."
ACLU's filing:
UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE
COURT WASHINGTON, DC
IN RE ORDERS ISSUED BY THIS COURT INTERPRETING SECTION 215 OF THE
PATRIOT ACT
________________
Docket No. ____________ MOTION OF THE AMERICAN
CIVIL LIBERTIES UNION, THE AMERICAN CIVIL LIBERTIES UNION OF THE
NATION’S CAPITAL, AND THE MEDIA FREEDOM AND INFORMATION ACCESS
CLINIC FOR THE RELEASE OF COURT RECORDS David A. Schulz
Media Freedom and Information Access Clinic Yale Law School
[address, phone, fax, email]
Alex Abdo Brett Max Kaufman Patrick Toomey Jameel Jaffer
American Civil Liberties Union Foundation [address, phone, fax,
email] Arthur B. Spitzer American Civil Liberties Union of the
Nation’s Capital [address, phone, fax, email]
PRELIMINARY STATEMENT Pursuant to the First
Amendment and to Rule 62 of the Foreign Intelligence Surveillance Court’s
Rules of Procedure (“FISC Rules”), the American Civil Liberties Union
(“ACLU”) and the Media Freedom and Information Access Clinic at Yale Law
School respectfully move for the publication of Foreign Intelligence
Surveillance Court (“FISC”) opinions evaluating the meaning, scope, and
constitutionality of Section 215 of the Patriot Act, 50 U.S.C. § 1861.1 On
June 6, 2013, the Director of National Intelligence officially acknowledged
and declassified details regarding a surveillance program approved by this
Court pursuant to that provision. President Obama and members of the
congressional intelligence committees have publicly discussed the program
and expressly invited a public debate about the legitimacy of the
government’s surveillance activities. This Court’s legal opinions approving
the program are of critical importance to that debate. The movants
respectfully request that the Court publish the opinions as quickly as
possible, with only those redactions that satisfy the stringent First
Amendment standard that applies in public-access cases. Alternatively, the
Court should exercise its discretion to do so in the public interest.2
1 FACTUAL BACKGROUND Section 215, which amended the
Foreign Intelligence Surveillance Act of 1978 (“FISA”), 50 U.S.C. § 1801 et
seq., empowers the Director of the FBI to obtain secret court orders from
the FISC compelling third parties to produce “any tangible things” relevant
to authorized foreign- intelligence or terrorism investigations. 50 U.S.C.
§ 1861(a)(1), (b)(2)(A). The orders are accompanied by a gag order
forbidding recipients from disclosing having received the order. 50 U.S.C.
§ 1861(c)–(d). Since its enactment, Section 215 has generated
considerable public debate. Many have raised concerns about the apparent
breadth of the statute (allowing the government to obtain “any tangible
things”), its standard for compelled disclosure (relevance to a
foreign-intelligence or terrorism investigation), and the indefinite
restraints it imposes upon the speech of recipients of disclosure orders.
See, e.g., Editorial, Revising the Patriot Act, N.Y. Times, Apr. 10, 2005,
http://nyti.ms/fQd8sJ (“Section 215 is written far too broadly. It lets the
government seize an entire database . . . when it is investigating a single
person. . . . If the gag rule remains, it should be limited, so record
holders can speak about the search after a suitable period of time, or talk
about it right away without revealing who the target was.”). In more
recent years, a handful of Senators have said that the government has
adopted a secret interpretation of its authority under Section 215, and
they have argued forcefully for its disclosure to allow an informed public
debate of its necessity and legality. See, e.g., Charlie Savage, Senators
Say Patriot Act is Being Misinterpreted, N.Y. Times, May 26, 2011,
http://nyti.ms/qMTGVx (quoting Sen. Ron Wyden as warning that “[w]hen the
American people find out how their government has secretly interpreted the
Patriot Act, they will be stunned and
2
they will be angry,” and
quoting Sen. Mark Udall as stating that “Americans would be alarmed if they
knew how this law was being carried out”). A few days ago, The Guardian
disclosed a previously secret order from this Court apparently implementing
the secret interpretation of Section 215 of which those Senators warned.
Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon
Customers Daily, Guardian, June 5, 2013, http://bit.ly/13jsdlb. The
order—which was issued on April 25, 2013 and expires on July 19,
2013—directs Verizon Business Network Services, Inc. to produce to the
National Security Agency “on an ongoing daily basis . . . all call detail
records or ‘telephony metadata’” of its customers’ calls, including those
“wholly within the United States.” Secondary Order (“Verizon 215 Order”),
In Re Application of the FBI for an Order Requiring the Production of
Tangible Things from Verizon Bus. Network Servs., Inc. on Behalf of MCI
Commc’n Servs., Inc. d/b/a Verizon Bus. Servs., No. BR 13-80 at 2 (FISC
Apr. 25, 2013), available at http://bit.ly/11FY393. In the few days
since The Guardian disclosed the order directed at Verizon, federal
officials have revealed even greater detail about the government’s
surveillance under Section 215. On June 6, James Clapper, the Director of
National Intelligence (“DNI”), officially acknowledged the authenticity of
the order sent to Verizon along with key details about the larger program
supported by this Court’s orders under Section 215. See James R. Clapper,
DNI Statement on Recent Unauthorized Disclosures of Classified Information,
Office of the Director of National Intelligence (June 6, 2013),
http://1.usa.gov/13jwuFc. He stated that: “[t]he judicial order that was
disclosed in the press is used to support a sensitive intelligence
collection operation”; “[t]he only type of information acquired under the
Court’s order is telephony metadata, such as telephone numbers dialed and
length of calls”; “[t]he [FISC] only allows the
3
data to be queried when
there is a reasonable suspicion, based on specific facts, that the
particular basis for the query is associated with a foreign terrorist
organization”; and “[t]he [FISC] reviews the program approximately every 90
days.” Id.
The following day, President Obama also commented publicly on the Section
215 order. Like the DNI, the President stated that “what the intelligence
community is doing is looking at phone numbers and durations of calls. They
are not looking at people’s names, and they’re not looking at content.”
Statement by the President, Office of the Press Secretary (June 7, 2013),
http://1.usa.gov/12xerjF. The President also stated that “This program, by
the way, is fully overseen not just by Congress, but by the FISA Court—a
court specially put together to evaluate classified programs to make sure
that the executive branch, or government generally, is not abusing them,
and that it’s being carried out consistent with the Constitution and rule
of law.” Id.
The President also encouraged the public debate that the revelation of the
Section 215 order had provoked: I welcome this debate. And I
think it’s healthy for our democracy. I think it’s a sign of maturity,
because probably five years ago, six years ago, we might not have been
having this debate. And I think it’s interesting that there are some folks
on the left but also some folks on the right who are now worried about it
who weren’t very worried about it when there was a Republican President. I
think that’s good that we’re having this discussion.
Id. ; see also Press Gaggle by Deputy Principal Press
Secretary Josh Earnest and Secretary of Education Arne Duncan, Office of
the Press Secretary (June 6, 2013), http://1.usa.gov/12xf251 (similar
comments). Finally, members of the congressional intelligence committees
have elaborated upon the DNI’s statement by confirming that the order
issued to Verizon was but a single, three-month order in a much broader,
seven-year program that allows the government to collect the telephone
records of essentially all Americans. See, e.g., Dan Roberts & Spencer
Ackerman, Senator
4
Feinstein: NSA Phone Call Data Collection in Place ‘Since
2006,’ Guardian, June 6, 2013, http://bit.ly/13rfxdu (“As far as I know,
this is the exact three-month renewal of what has been the case for the
past seven years. This renewal is carried out by the [foreign intelligence
surveillance] court under the business records section of the Patriot
Act.”); id. (Senator Saxby Chambliss: “This has been going on for
seven years.”). Like President Obama, Senator Dianne Feinstein—Chairman
of the Senate Select Committee on Intelligence and a vocal proponent of the
Section 215 program authorized by this Court—has encouraged public debate
about the program and any proposed changes to it. Matthew DeLuca & Kasie
Hunt, NSA Snooping Has Foiled Multiple Terror Plots: Feinstein, NBC News,
June 6, 2013, http://nbcnews.to/13rgOl0 (“We are always open to changes.
But that doesn’t mean there will be any. It does mean that we will look at
any ideas, any thoughts, and we do this on everything.”). Despite the
extraordinary and increasing public interest in the surveillance program
authorized by the Court, the Court’s legal opinions evaluating the meaning,
scope, and constitutionality of Section 215 and that program in particular
remain secret. JURISDICTION
As an inferior federal court established by Congress under Article III,
this Court is vested with inherent powers, including “supervisory power
over its own records and files.” Nixon v. Warner Commc’ns, Inc., 435 U.S.
589, 598 (1978); accord Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)
(“It has long been understood that [c]ertain implied powers must
necessarily result to our Courts of justice from the nature of their
institution.” (quotation marks omitted)). As this Court has previously
determined, the FISC therefore has “jurisdiction in the first instance to
5
adjudicate a claim of right to the court’s very own records and files.” In
re Motion for Release of Court Records, 526 F. Supp. 2d at 487.
ARGUMENT I. THE FIRST AMENDMENT COMPELS
THE RELEASE OF THE COURT’S LEGAL OPINIONS RELATED TO SECTION 215 OF THE
PATRIOT ACT. A. The First Amendment Right
of Access Attaches to Judicial Opinions, Including the Opinions of this
Court Interpreting Section 215.
That the judicial process should be as open to the public as possible is a
principle enshrined in both the Constitution and the common law. See
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 564–73 (1980); Lugosch
v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (“The common
law right of public access to judicial documents is firmly rooted in our
nation’s history.”); cf. Letter from James Madison to W.T. Barry (Aug. 4,
1822), in 9 Writings of James Madison at 103 (G. Hunt ed. 1910) (“A popular
Government, without popular information, or the means of acquiring it, is
but a Prologue to a Farce or a Tragedy; or, perhaps both.”). The public’s
right of access to judicial proceedings and records under the First
Amendment is not absolute; while some exclusions may pass constitutional
muster, “[w]hat offends the First Amendment” is judicial secrecy imposed
“without sufficient justification.” N.Y. Civil Liberties Union v. N.Y.C.
Transit Auth., 684 F.3d 286, 296 (2d Cir. 2012). Under the Supreme Court’s
prevailing “experience and logic” test, the public’s qualified First
Amendment right of access to judicial proceedings and records attaches
where (a) the types of judicial processes or records sought have
historically been available to the public, and (b) public access plays a
“significant positive role” in the functioning of those proceedings.
Press-Enter. Co. v. Superior Court, 478 U.S. 1, 9, 11 (1986) (“Press-Enter.
II”); see Globe Newspaper v. Superior Court, 457 U.S. 596, 605–07 (1982);
Wash. Post v. Robinson, 935 F.2d 282, 287–92 (D.C. Cir. 1991). Here, there
is a nearly unbroken tradition of public access to judicial rulings and
opinions
6
interpreting the laws governing the American people and
their government. Moreover, publishing judicial opinions interpreting
limits on government power—particularly when those opinions construe the
scope of domestic surveillance authority—crucially enhances the public’s
ability to evaluate its representatives and function as an essential check
on its government.
In concluding otherwise upon consideration of the ACLU’s previous
public-access motion to this Court, the Court erred. By limiting the
Court’s analysis to whether the two published opinions of this Court
“establish a tradition of public access” and concluding that “the FISC is
not a court whose place or process has historically been open to the
public,” In re Motion for Release of Court Records, 526 F. Supp. 2d 484,
493 (FISA Ct. 2007) (emphasis omitted), the Court failed to identify the
proper focus of the “experience” prong of the Supreme Court’s test. As that
Court has made clear, “the ‘experience’ test of Globe Newspaper does not
look to the particular practice of any one jurisdiction, but instead to the
experience in that type or kind of hearing throughout the United States.”
El Vocero de P.R. v. Puerto Rico, 508 U.S. 147, 150 (1993) (per curiam)
(quotation marks omitted). And far from “result[ing] in a diminished flow
of information[] to the detriment of the process in question,” disclosure
of the requested opinions would serve weighty democratic interests by
informing the governed about the meaning of public laws enacted on their
behalf. 1. “Experience”
When evaluating the First Amendment interests at stake in public-access
cases, the proper focus is the type of judicial records or process to which
a petitioner seeks access, not the past practice of the specific forum.
See, e.g., El Vocero de P.R., 508 U.S. at 150; N.Y. Civil Liberties Union,
684 F.3d at 301 (rejecting the view that “[t]he Richmond Newspapers test
looks . . . to the formal description of the forum”); Hartford Courant Co.
v. Pellegrino, 380 F.3d
7
83, 94 (2d Cir. 2004) (examining First Amendment
right of access to district court “docket sheets and their historical
counterparts,” beginning with early English courts); In re Boston Herald,
Inc., 321 F.3d 174, 184 (1st Cir. 2003) (concluding that the experience
test includes examining “analogous proceedings and documents”). Here, the
types of records at issue are judicial opinions interpreting the meaning of
public statutes.3 And no type of judicial record enjoys as uninterrupted a
history of presumptive openness as a judicial opinion. See Lowenschuss v.
W. Pub. Co., 542 F.2d 180, 185 (3d Cir. 1976) (“As ours is a common-law
system based on the ‘directive force’ of precedents, its effective and
efficient functioning demands wide dissemination of judicial decisions. . .
. Even that part of the law which consists of codified statutes is
incomplete without the accompanying body of judicial decisions construing
the statutes. Accordingly, under our system of jurisprudence the judiciary
has the duty of publishing and disseminating its decisions.” (quoting
Benjamin N. Cardozo, The Nature of the Judicial Process 20, 22 (1963)));
see also Scheiner v. Wallace, 93 Civ. 62, 1996 WL 633226, at *1
(S.D.N.Y. Oct. 31, 1996) (“The public interest in an accountable judiciary
generally demands that the reasons for a judgment be exposed to public
scrutiny. . . . Therefore, the presumption of public access to” judicial
opinions “is particularly high.” (citing United States v. Amodeo, 71 F.3d
1044, 1048–49 (2d Cir. 1995)). As part of this history, courts have found a
qualified First Amendment right of access to judicial opinions construing
the government’s search and seizure powers. See In re Application of N.Y.
Times Co. for Access to Certain Sealed Court Records, 585 F. Supp. 2d 83,
88 (D.D.C. 2008) (stating that “routine historical practice countenances in
favor of a qualified First Amendment right of access to warrant
materials”).
8
2. “Logic”
Just as fundamentally, the “significant positive role” of public judicial
decisionmaking in a democracy is so firmly established that it is hardly
ever questioned. Public access to judicial opinions promotes confidence in
the judicial system by allowing the public to evaluate for itself the
operation and decisions of the courts. As the Supreme Court has explained,
“[p]eople in an open society do not demand infallibility from their
institutions, but it is difficult for them to accept what they are
prohibited from observing.” Press-Enter. II, 478 U.S. at 13; see Richmond
Newspapers, 448 U.S. at 569 (discussing the value of an open justice system
and noting that “‘[w]ithout publicity, all other checks are insufficient:
in comparison of publicity, all other checks are of small account’”
(alteration in original) (quoting Jeremy Bentham, Rationale of Judicial
Evidence 524 (1827))); United States v. Aref, 533 F.3d 72, 83 (2d Cir.
2008) (“Transparency is pivotal to public perception of the judiciary’s
legitimacy and independence.”); Huminski v. Corsones, 396 F.3d 53, 81 (2d
Cir. 2005) (“[I]n these cases . . . the law itself is on trial, quite as
much as the cause which is to be decided. Holding court in public thus
assumes a unique significance in a society that commits itself to the rule
of law.” (quotation marks omitted)); In re Orion Pictures Corp., 21 F.3d
24, 26 (2d Cir. 1994) (“This preference for public access is rooted in the
public’s first amendment right to know about the administration of justice.
It helps safeguard the integrity, quality, and respect in our judicial
system, and permits the public to keep a watchful eye on the workings of
public agencies.” (quotation marks and citations omitted)); United States
v. Ressam, 221 F. Supp. 2d 1252, 1263 (W.D. Wash. 2002) (explaining that
“the general practice of disclosing court orders to the public not only
plays a significant role in the judicial process, but is also a fundamental
aspect of our country’s open administration of justice”).
9
The
value in making judicial opinions available to the public only increases
where, as here, the subject of such opinions concerns both the power of the
Executive Branch and the constitutional rights of citizens.4 See F.T.C. v.
Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987) (“The
appropriateness of making court files accessible is accentuated in cases
where the government is a party: in such circumstances, the public’s right
to know what the executive branch is about coalesces with the concomitant
right of the citizenry to appraise the judicial branch.”); In re
Application for Pen Register & Trap/Trace Device with Cell Site Location
Auth., 396 F. Supp. 2d 747, 748–49 (S.D. Tex. 2005) (“The underlying order
and application have been sealed at the government’s request, in order not
to jeopardize the ongoing criminal investigation. This opinion will not be
sealed, because it concerns a matter of statutory interpretation which does
not hinge on the particulars of the underlying investigation. The issue
explored here has serious implications for the balance between privacy and
law enforcement, and is a matter of first impression in this circuit as
well as most others.”). This principle is no less true in the context of
national security, where the courts have routinely recognized and given
effect to the public’s right of access to judicial orders and opinions.
Indeed, where matters of national security are at stake, the role of public
evaluation of judicial decisions takes on an even weightier role. See
Ressam, 221 F. Supp. 2d at 1262 (in discussing a protective order in a
terrorism prosecution, explaining that “there is a venerable tradition of
public access to court orders”). 4 The Second Circuit has explained that
“the weight to be given the presumption of access must be governed by the
role of the material at issue in the exercise of Article III judicial power
and the resultant value of such information to those monitoring the federal
courts.” Amodeo, 71 F.3d at 1049.
10
Moreover, public release of
this Court’s legal interpretations of Section 215 would benefit the public
interest immensely.5 As discussed above, the recent disclosures about the
Executive Branch’s use of its surveillance authority under Section 215 have
prompted a renewed debate about that authority—a debate welcomed by both
President Obama and members of Congress. Because the Verizon 215 Order
merely implements, rather than explains, the government’s surveillance
authority under Section 215, the release of opinions issued by this Court
interpreting that authority would permit the public to more fully
understand the order’s meaning and to contribute to the ongoing debate, as
well as to hold its representatives accountable for their support of or
opposition to such authority. For example, release of Section 215
opinions would allow the public to understand the reach of the statutory
term “tangible things,” which is not defined in FISA but apparently has
been interpreted to include even electronic items. Compare 50 U.S.C. §
1861(a)(1) (stating that “tangible things” “include[e] books, records,
papers, documents, and other items”), with Verizon 215 Order at 2 (stating
that “tangible things” include “all call detail records or ‘telephony
metadata’ created by Verizon for communications (i) between the United
States and abroad; or (ii) wholly within the United States, including local
telephone calls”). Likewise, disclosure of the Court’s opinions would
inform ongoing debate about the statutory phrase “relevant to an authorized
investigation,” 50 U.S.C. § 1861(b)(2)(A), and address confusion as to how
the call records of all Americans or all Verizon customers could be
“relevant to” an investigation. See, e.g., Amy Davidson, The N.S.A.–Verizon
Scandal, Close Read, New Yorker (June 6, 2013), http://nyr.kr/ZvnXzM (“Does
the government believe that the possibility that someone,
11
somewhere, is calling a terrorist makes the entire body
of phone calls relevant? If the answer is yes—and I don’t think it is—then
there is something very wrong with the law.”); Benjamin Wittes, A
Correction and a Reiteration, Lawfare (June 6, 2013, 7:53 PM),
http://bit.ly/1baFxv8 (“But here’s the problem: if that constitutes
relevance for purposes of Section 215 then isn’t all data relevant to all
investigations?”). The Verizon 215 Order raises other questions about
how this Court has interpreted the government’s authority under the statute
as well: - Whether a statute authorizing the
compelled disclosure of “tangible things” permits essentially real-time
surveillance “on an ongoing daily basis”? See Verizon 215 Order at 1–2.
- Whether this Court has been asked to, or endeavored to, revisit
its legal interpretation of Section 215 in light of the conclusion of five
members of the Supreme Court in United States v. Jones, 132 S. Ct. 945
(2012), that “longer term” collection of location data or information not
ordinarily protected by the Fourth Amendment constitutes a search? See
id. at 964 (Alito, J., concurring in the judgment for four members
of the Court); id. at 955 (Sotomayor, J.).
- Whether this
Court has examined the application of Smith v. Maryland, 442 U.S. 735
(1979), to the mass acquisition of phone records by the government under
Section 215?
- Whether this Court has considered the
constitutionality of the “gag order” provision of Section 215, 50 U.S.C. §
1861(d), in light of the holding of the Second Circuit that a similar
nondisclosure provision in another statute was unconstitutional? See, e.g.,
John Doe, Inc. v. Mukasey, 549 F.3d 861 (2d Cir. 2008).
Because there is a longstanding American tradition of public access to
judicial opinions; because such access positively contributes to the
integrity of the judicial process, the democratic legitimacy of this Court,
and the public understanding of laws passed in its name; and because the
release of opinions interpreting Section 215 would illuminate crucial gaps
in the public knowledge about the breadth of its government’s surveillance
activities under the statute, this
12
Court should conclude that the
public’s First Amendment right of access attaches to the Court’s legal
opinions relating to Section 215.6
B. The First Amendment Requires Disclosure of the
Court’s Opinions Relating to Section 215.
When the First Amendment right of access attaches to judicial documents,
strict scrutiny applies to any restriction of that right. See Globe
Newspaper Co., 457 U.S. at 606–07; accord Richmond Newspapers, 448 U.S. at
581. A court may restrict access only on the basis of a “compelling
governmental interest,” and only if the denial is “narrowly tailored to
serve that interest.” Globe Newspaper Co., 457 U.S. at 606–07. Moreover,
the burden to overcome a First Amendment right of access rests on the party
seeking to restrict access, and that party must present specific reasons in
support of its position. See Press-Enter. II, 478 U.S. at 15 (“The First
Amendment right of access cannot be overcome by [a] conclusory
assertion.”). The government cannot meet the strict-scrutiny test here.
With the revelation of the Verizon 215 Order, the President’s defense of
the government’s Section 215 surveillance, and the explanations given by
DNI Clapper and members of Congress, the proposition that the
13
government has an interest—let alone a “compelling”
one—in preventing the release of this Court’s opinions interpreting Section
215 is insupportable.7 In fact, a fuller accounting of the legal basis for
the Verizon 215 Order would serve governmental interests by giving context
and substance to the content of the order. Cf. James R. Clapper, DNI
Statement on Recent Unauthorized Disclosures of Classified Information,
Office of the Director of National Intelligence (June 6, 2013),
http://1.usa.gov/13jwuFc (“DNI Statement”) (“The article omits key
information regarding how a classified intelligence collection program is
used to prevent terrorist attacks and the numerous safeguards that protect
privacy and civil liberties. I believe it is important for the American
people to understand the limits of this targeted counterterrorism program
and the principles that govern its use.”).
Of course, portions of the Court’s opinions may be sealed to serve
compelling governmental interests—for example, to protect intelligence
sources and methods that have not been previously disclosed—but the First
Amendment requires the Court to ensure that any redactions be narrowly
tailored to serve that interest. Cf. Pepsico, Inc. v. Redmond, 46 F.3d 29,
14
31 (7th Cir. 1995)
(Easterbrook, J.) (“The judge must make his own decision about what should
be confidential (and thus be the subject of oblique reference) and what may
be spoken of openly. I regret that this means extra work for the judge, but
preserving the principle that judicial opinions are available to the public
is worth at least that much sacrifice.”). Critical to that analysis will be
the numerous disclosures made to date regarding the government’s
surveillance activities under Section 215: that the government relies upon
Section 215 to collect all Americans’ call records, that it has been doing
so for seven years, that this Court reauthorizes that collection program
approximately every ninety days, and that this Court “only allows the data
to be queried when there is a reasonable suspicion, based on specific
facts, that the particular basis for the query is associated with a foreign
terrorist organization.” DNI Statement. II. ALTERNATIVELY, THE
COURT SHOULD EXERCISE ITS DISCRETION TO RELEASE ITS LEGAL OPINIONS
CONCERNING SECTION 215. Even if the Court determines that the First
Amendment does not require the release of these judicial decisions, the
Court’s supervisory powers over its own records, as reflected in the FISC
Rules, permit the Court to publish its orders and opinions. The movants
respectfully request that the Court exercise this authority. The FISC
Rules expressly permit the Court to publish its own orders, opinions, or
other decisions “sua sponte or on motion by a party request that [they] be
published.” FISC R.P. 62(a) (2010).8
Indeed, in 2010, the Court revised its procedural rules to clarify that the Court may
15
release its orders and opinions without prior Executive
Branch approval or review.9 Moreover, the Court would have authority to
grant this motion even in the absence of these rules, because it is
fundamental that “every court has supervisory power over its own records
and files.” In re Motion for Release of Court Records, 526 F. Supp. 2d at
486–87 (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978));
see also Gambale v. Deutsche Bank AG, 377 F.3d 133, 140 (2d Cir.
2004). The movants recognize that this Court’s docket encompasses a
great deal of material that is properly classified. This motion does not
seek the disclosure of intelligence targets or, for that matter, any
properly classified information. But some matters that come before the FISC
raise novel and complex legal issues and, as a consequence, generate legal
interpretations of broad significance. The FISC Rules contemplate instances
in which the Court can and should provide public access to these
decisions—and the Court has, in the past, exercised this power in precisely
the manner urged by the movants. On at least three occasions, this Court or
the FISA Court of Review (“FISCR”) has recognized the public interest in
the Court’s resolution of such issues and has, accordingly, published its
rulings. In the early 1980s, Presiding Judge George Hart published an
opinion concerning the Court’s authority to issue warrants for physical
searches. Letter from Presiding Judge Colleen Kollar-Kotelly to Hon.
Patrick J. Leahy, et al. (Aug. 20, 2002) (“Kollar-Kotelly Letter”),
available at http://bit.ly/114e6SM; see James Bamford, The Puzzle Palace: A
Report on America’s Most Secret Agency (Penguin Books 1983). In 2002, the
properly classified information is appropriately protected pursuant to
Executive Order 13526 (or its successor).
16
Court published an en
banc decision addressing the government’s motion to vacate certain
procedures that the Court had previously enforced as “minimization
procedures” under 50 U.S.C. § 1801(h). See Hon. Kollar-Kotelly Letter.10
Most recently, in 2009, the FISCR released a formerly classified opinion
because it “addresses and resolves issues of statutory and constitutional
significance,” because “it would serve the public interest and the orderly
administration of justice to publish” the opinion, and because the Court
could redact classified material from the opinion without “distorting the
content of the discussion of the statutory and constitutional issues.”
Order, In re Directives [Redacted] Pursuant to Section 105B of the Foreign
Intelligence Surveillance Act, No. 08-01 at 1 (FISA Ct. Rev. Jan. 12,
2009), available at http://bit.ly/r32r2W. All of those factors apply with
equal force to this motion. At a minimum, the Court’s previous disclosures
show that the type of tailored, limited publication of the Court’s legal
reasoning requested here can be accomplished without harm to national
security. The Court’s opinions concerning Section 215 plainly address
legal issues of similarly broad significance. The broad surveillance power
conferred by Section 215 and the unknown reach of several of the statute’s
terms make any controlling judicial interpretation of the law a matter of
acute public concern. The materials sought by this motion are not simply
routine FISC orders that granted run-of-the-mill surveillance applications;
they are, instead, decisional law fixing the limits of the government’s
surveillance authority. The opinions are surely, in practice, a clearer
statement of what Section 215 does and does not allow than the words in the
U.S. Code.
17
That the release of the
Verizon 215 Order came as such a shock to the nation indicates just how
uninformed the public has been to date about the scope of the provision.
Access to these legal opinions is thus crucial: the public cannot assess
the country’s laws, the work of their legislators, or the powers conferred
upon their executive officials unless they know what the courts take those
laws to mean. In this way, the sealed opinions at issue have far- reaching
implications. In “address[ing] and resolv[ing] issues of statutory and
constitutional significance,” they affect far more than the executive’s
authority to conduct surveillance in individual foreign intelligence or
terrorism investigations. Order, In re Directives [Redacted] Pursuant to
Section 105B of the Foreign Intelligence Surveillance Act, No. 08-01 at 1
(FISA Ct/ Rev. Jan. 12, 2009). Disclosure of these opinions, with
redactions to protect information that warrants continued sealing, is
consistent with the Court’s past practice and procedural rules.
Moreover, the recent disclosures relating to the government’s surveillance
activities under Section 215 eliminate any interest in continued sealing of
the Court’s legal opinions. As explained above, the President, the Director
of National Intelligence, and members of the congressional intelligence
committees have revealed the essential details of the program. This Court’s
rules permit it to publish its legal opinions in precisely these
circumstances. At the same time, the Court’s previous disclosures exemplify
the Court’s ability to properly balance the need for disclosure with the
government’s interest in secrecy in this context. There is no obstacle—
either procedural or practical—to releasing FISC opinions that have been
carefully redacted to protect specific intelligence interests, so that the
public knows the meaning of its laws. 18 CONCLUSION
For the foregoing reasons, the movants respectfully request that this Court
unseal its opinions evaluating the meaning, scope, and constitutionality of
Section 215 of the Patriot Act. The movants request that these materials be
released as quickly as possible and with only those redactions essential to
protect information that the Court determines, after independent review, to
warrant continued sealing. Given the relevance of the opinions to an
ongoing debate of immense public interest, the movants also request
expedited consideration of this motion, as well as oral argument before the
Court.
Respectfully submitted:
/s/ Alex Abdo Alex Abdo Brett Max Kaufman Patrick
Toomey Jameel Jaffer American Civil Liberties Union Foundation
[address, phone, fax, email]
David A. Schulz Media Freedom and Information Access Clinic Yale
Law School [address, phone, fax, email]
Arthur B. Spitzer American Civil Liberties Union of the Nation’s
Capital [address, phone, fax, email] June 10, 2013
__________
1 “The Patriot Act” is the common name for the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001).
2 In 2007, the ACLU filed a motion for public access to certain FISC records,
which the Court denied in an opinion signed by Judge John D. Bates. See In
re Motion for Release of Court Records, 526 F. Supp. 2d 484 (FISA Ct. 2007).
The present motion seeks access to a different set of FISC opinions and
presents a new factual and legal record in support of disclosure. As such,
it merits consideration by the Court on its own terms. If the earlier
decision controls the resolution of this motion, however, the movants
respectfully request an order permitting them to seek en banc FISC
review or to appeal directly to the Court of Review.
3 This Court therefore erred in previously considering the
“experience” test to address only “FISC orders” or “a narrow subset of FISC
decisions of broad legal significance,” In re Motion for Release of Court
Records, 526 F. Supp. 2d at 492–93.
4 The Second Circuit has explained that “the weight to be given the
presumption of access must be governed by the role of the material
at issue in the exercise of Article III judicial power and the
resultant value of such information to those monitoring the
federal courts.” Amodeo, 71 F.3d at 1049.
5 The relief sought by this motion does not, as this Court interpreted the ACLU’s 2007 motion,
seek “broad public access to FISC proceedings or records,” In re Motion for Release
of Court Records, 526 F. Supp. 2d at 494, but only those opinions that evaluate the
meaning, scope, and constitutionality of Section 215.
6 In dismissing the ACLU’s prior motion for public access, Judge Bates found
it relevant that the Court’s opinions could be obtained under the Freedom of
Information Act (“FOIA”). On May 31, 2011, the ACLU filed a FOIA request seeking
records related to the government’s legal interpretation of Section 215, including
the legal opinions sought here. Compl. ¶¶ 23–24, Am. Civil Liberties Union v. FBI,
No. 11 Civ. 7562 (S.D.N.Y. Oct. 26, 2011), ECF No. 1. In subsequent litigation, the
government has argued that it may not release “FISC records” under FOIA, because
only this Court may do so. Second Supplemental Decl. of Mark A. Bradley at ¶ 12,
Am. Civil Liberties Union v. FBI, No. 11 Civ. 7562 (S.D.N.Y. Apr. 26, 2013),
ECF No. 55. That position contradicts representations made by the government
before this Court, in which it insisted that FOIA was “the [o]nly [a]ppropriate
[a]venue” for obtaining FISC opinions. Br. for Gov’t at 5–7, In re Motion for
Release of Court Records, 526 F. Supp. 2d 484 (FISA Ct. 2007). The Court
credited that argument in rejecting the ACLU’s previous motion for access
to specific FISC records. See In re Motion for Release of Court Records, 526
F. Supp. 2d at 491 n.18, 497. For the reasons explained in this motion, the
public’s First Amendment right of access attaches to this Court’s legal opinions
interpreting public laws, irrespective of the government’s statutory obligation
under FOIA to disclose records in its possession.
7 That portions of the opinions sought might be classified is no obstacle
to this Court’s granting of the relief requested by this motion. The
question whether—and to what extent— judicial records must be disclosed is
one for the Court to decide, applying the constitutional standard mandated
by the First Amendment. See, e.g., Washington Post Co. v. Soussoudis, 807
F.2d 383, 391–92 (4th Cir. 1986) (“[T]roubled as we are by the risk that
disclosure of classified information could endanger the lives of both
Americans and their foreign informants, we are equally troubled by the
notion that the judiciary should abdicate its decisionmaking responsibility
to the executive branch whenever national security concerns are present.”);
United States v. Rosen, 487 F. Supp. 2d 703, 716 (E.D. Va. 2007) (“While it
is true, as an abstract proposition, that the government’s interest in
protecting classified information can be a qualifying compelling and
overriding interest, it is also true that the government must make a
specific showing of harm to national security in specific cases to carry
its burden [under the Press-Enterprise standard].”). The government does
not dispute that federal courts may order the release of classified
information where justified. See Final Reply Br. of Appellants at 8 n.1,
Ctr. for Int’l Envtl. Law v. Office of the U.S. Trade Representative, No.
12-5136 (D.C. Cir. Nov. 27, 2012) (stating that the government has not
“suggested that the Executive’s determination that a document is classified
should be conclusive or unreviewable”).
8 Rule 62 of the FISC Rules,
effective November 1, 2010, states: (a) Publication of Opinions. The Judge
who authored an order, opinion, or other decision may sua sponte or on
motion by a party request that it be published. Upon such request, the
Presiding Judge, after consulting with other Judges of the Court, may
direct that an order, opinion or other decision be published. Before
publication, the Court may, as appropriate, direct the Executive Branch to
review the order, opinion or other decision and redact it as necessary to
ensure that properly classified information is appropriately protected pursuant
to Executive Order 13526 (or its successor).
9 Compare FISC R.P. 62(a) (2010)
(stating that before publication of an opinion the Court “may, as
appropriate, direct the Executive Branch to review the order, opinion, or
other decision and redact it as necessary to ensure that properly
classified information is appropriately protected”), with FISC R.P. 5(c)
(2006) (stating that before publication of an opinion it “must be reviewed
by the Executive Branch and redacted, as necessary, to ensure that properly
classified information is appropriately protected”).
10 This Court’s decision was later appealed by the government,
requiring the FISCR to convene for the first time ever. The FISCR published
its subsequent order and opinion. See In re Sealed Case, 310 F.3d 717, 742
(FISA Ct. Rev. 2002). The briefs submitted by the government were also made
public. See Br. for the United States, In re Sealed Case, No. 02-001 (Aug.
21, 2002); Supp. Br. for the United States, In re Sealed Case, No. 02-001
(Sep. 25, 2002). The briefs are available at
http://fas.org/irp/agency/doj/fisa/.
19
[PJ: For Certificate of Service, see PDF please.]
20
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