Supreme Court Tosses ALCU Request

( )- The American Civil Liberties Union will not gain access to decisions that are made in U.S. surveillance court.

On Monday, the Supreme Court said it wouldn’t review the ACLU’s request to have access to the surveillance court decisions. The high court didn’t sign their decision, though Justices Neil Gorsuch and Sonia Sotomayor did issue a joint dissent.

The Supreme Court was being asked to decide whether people in America had a right under the First Amendment to see the decisions that were made by a court created under the Foreign Intelligence Surveillance Act. That court is secretive at the moment, and has played a huge role in the expanded efforts by the government to conduct mass surveillance.

In a brief they filed in April, the ACLU argued that the secret court used to have a narrow role, but ballooned to something much bigger after the terrorist attacks of September 11 in 2001. Now, the portfolio under the court has “profound implications for individual rights.”

One person who signed onto the case is Theodore Olson, who served as a solicitor general for former President George W. Bush. He argued:

“It’s crucial to the legitimacy of the foreign intelligence system, and to the democratic process, that the public have access to the court’s significant opinions.”

While the overall court declined to hear the ACLU’s request, two justices disagreed publicly. In a dissent, Gorsuch — joined by Sotomayor — said he would’ve granted the ACLU the review.

He wrote:

“This case presents questions about the right of public access to Article III judicial proceedings of grave national importance. Maybe even more fundamentally, this case involves a governmental challenge to the power of this Court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is?”

This case actually goes all the way back to 2016, when the ACLU filed a request with the surveillance court to see records that dates between 2001 and 2015. It was during that time period that the group was saying government surveillance had expanded greatly.

That fact actually was revealed as part of the disclosures in 2013 of Edward Snowden, a former contractor for the government.

In that time period, the court was addressing issues of the government’s warrantless use of surveillance on internet, installing malware on computers throughout America in secret, and whether the government could legally bulk search email.

The brief in that case convinced the justices to recognize a limited right under the First Amendment to access court opinions from FISA. While the documents would be redacted, they could be released on any issue of importance to the public, such as on cases regarding statutory and constitutional scope of the power of government surveillance.

Congress ultimately passed in 2015 the USA Freedom Act. Through it, some transparency was added to the court when it required the federal government to conduct declassification reviews periodically of all its rulings.