A nation must think before it acts.
Center for Ethics and the Rule of Law
As has now been widely reported, last month the American Civil Liberties Union (ACLU), represented by a consortium of lawyers drawn from a host of First Amendment advocacy groups, filed a petition with the U.S. Supreme Court requesting that it, as described in an article appearing in Just Security, “order the Foreign Intelligence Surveillance Court (FISC) to publish its secret opinions, redacted only as necessary to prevent genuine harm to national security.”
The petition seeks to upend the current process that serves to ensure that the content of important FISC opinions is made available to the public in a form that is consistent with the preservation of national security. The petition’s advocates insist that a broader right of access, grounded in the First Amendment, is required because “these opinions [from the FISC] have had a profound impact on Americans’ right to privacy, free expression, and free association [but] many of them are entirely hidden from public view.”
There can be little doubt that the target of those filing this petition with the Supreme Court is Section 702. FISA surveillances executed under FISA’s “traditional” Title I authority generate between 1,000-2,000 applications per year, only a fraction of which are directed at U.S. persons. The standard for surveilling a U.S. person under Title I requires a showing of probable cause that the target is knowingly engaging in clandestine intelligence or terrorist activities on behalf of a foreign power where those activities involve, or may involve, a violation of U.S. criminal statutes—a standard virtually guaranteeing that any FISC opinion will be fact intensive and of limited general application. Consequently, no FISC order issued under Title I is likely to have a “profound impact” on the rights of Americans.
Intuitively, then, only one “sweeping program of electronic surveillance” conducted under the authority of FISA presents the “profound impact” argued by those seeking enhanced access to FISC opinions—the Section 702 collection program. Nor is it surprising to see the assemblage of those supporting the petition take further aim at Section 702 because they have been attacking that surveillance authority both in public advocacy and in litigation for years. In Clapper v. Amnesty International USA, some of the same lawyers who filed last week’s petition unsuccessfully sought to enjoin Section 702 surveillance and have that part of FISA authorizing Section 702 declared unconstitutional. The Supreme Court concluded that the plaintiffs lacked the standing necessary to pursue their claims. In Wikimedia Foundation v. NSA, the ACLU found a different client, the Wikimedia Foundation, and again sought to have Section 702 declared unconstitutional as violating its First and Fourth Amendment rights. After years of litigation, the federal court granted the government’s motion for summary judgment, and that decision is now on appeal. Yet another Section 702 opponent, the Electronic Frontier Foundation, acting with the ACLU’s assistance, unsuccessfully sought to have Section 702 declared unconstitutional in Jewel v. NSA, a case filed over a decade ago. In April 2019, the federal court handling the Jewel litigation also awarded the government summary judgment, and that decision, too, is now on appeal.