One of the most powerful courts in the country, the Foreign Intelligence Surveillance Court, is cloaked in unnecessary secrecy. It authorizes panoramic surveillance programs that can have profound implications for the rights of millions of Americans, but many of its significant decisions have been withheld from the public.
The three of us have different views about how expansive the government’s surveillance powers should be. One of us, as solicitor general of the United States, defended the broad authority granted to federal officials to track and intercept communications for law enforcement and intelligence-gathering purposes under the U.S.A. Patriot Act; the other two have been among that law’s most active critics.
But we agree about one crucial point: The needless secrecy surrounding the surveillance court is bad for the court, the intelligence agencies and the public—and it is also unconstitutional.
We said this to the Supreme Court last month in a petition filed on behalf of the American Civil Liberties Union, arguing that the public should have access to the surveillance court’s decisions. And in briefs filed with the court last week, many others—including former intelligence officials, civil society groups, and a major technology company—reinforced the same point.
Congress created the surveillance court in 1978 after a congressional committee found that the intelligence agencies had abused their surveillance powers in ways that violated Americans’ rights and jeopardized our democracy. The court was charged with overseeing certain kinds of surveillance conducted for national security purposes. In its original incarnation, its role was narrow. It authorized a few hundred wiretaps a year.
But the court’s role has since been transformed. After the Sept. 11 attacks, Congress expanded the government’s surveillance power. New technology also made possible more sweeping and intrusive forms of surveillance. Today, the court is frequently asked to evaluate surveillance programs whose scale is staggering, and its opinions in such cases are of immense consequence for Americans’ privacy, expressive and associational rights.
For nearly a decade, for example, the court authorized the government to collect records on most phone calls made or received in the United States, detailing who called whom, when, and for how long—all without any suspicion of illegal activity. In another opinion, the court upheld the government’s practice of scanning Americans’ emails for intelligence purposes as those communications enter and leave the country. More recently, it permitted the F.B.I. to fish for information about Americans in huge databases of international emails, online messages and web chats obtained without probable cause.
And in a series of opinions, including one involving the F.B.I.’s investigation of Carter Page, a onetime campaign adviser to Donald Trump, the court addressed episodes in which the government was not fully candid about the intelligence agencies’ surveillance of Americans.
These opinions are among the subset that have been published—some of them in response to the 2015 U.S.A. Freedom Act, which requires the intelligence agencies to conduct a declassification review of opinions that include significant legal analysis. The publication of these opinions helped inform public debate, and in some instances led to legislative reform.
But many of the surveillance court’s opinions remain secret, and the U.S.A. Freedom Act does not ensure that the court’s future opinions will see the light of day. The surveillance court has made clear it believes the executive branch should have the last word on whether the court’s opinions should be published. When the A.C.L.U. challenged this conclusion, both the surveillance court and the appeals court that oversees it held that they lacked authority even to consider the A.C.L.U.’s claim.
This state of affairs is not reconcilable with the Constitution. The Supreme Court held four decades ago that the First Amendment protects the public’s right of access to certain judicial proceedings. It is now widely accepted that the public has a First Amendment right of access to judicial opinions except where redactions are necessary to serve a compelling government interest and are as limited as possible.
The surveillance court has exempted itself from this rule on the ground that it deals with national security matters. But other American courts address such matters, too, and yet they honor the First Amendment right of access as a matter of course. They publish their opinions even when they concern the same questions the surveillance court addresses in its opinions, such as the legality of digital searches conducted for national security purposes.
The unwarranted secrecy surrounding the surveillance court impoverishes public debate about government surveillance. It means that surveillance power can grow invisibly and easily become unmoored from the democratic consent that gives it legitimacy. The friend-of-the-court brief filed by former government officials—including James Clapper, a former director of national intelligence; John Brennan, a former C.I.A. director; and Donald Verrilli, a former solicitor general — makes exactly this point.
Unnecessary secrecy also undermines public confidence in the surveillance court. As the Supreme Court once observed, “People 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.” The surveillance court’s suggestion that it is not subject to the usual constraints of the First Amendment—and, indeed, that it lacks authority even to consider the First Amendment question—has only engendered suspicion of the court, and of the surveillance the court approves.
No one—not the public, not the intelligence agencies and not the surveillance court—benefits if public debate about these questions is hobbled by unjustified secrecy. The petition we and our colleagues filed in the Supreme Court seeks to bring the surveillance court’s practices in line with the Constitution. The Supreme Court should make clear that the same First Amendment rules that apply to other courts apply to the surveillance court as well.
Jameel Jaffer is Executive Director of the Knight First Amendment Institute.
Theodore Olson is a partner in Gibson, Dunn & Crutcher's Washington, D.C. office; a longtime Member of the Firm's Executive Committee, and Founder of the Firm’s Crisis Management, Sports Law, and Appellate and Constitutional Law Practice Groups.
David Cole is National Legal Director of the American Civil Liberties Union.