In 1978, the United States government concurrently established two secret courts — the U.S. Foreign Intelligence Surveillance Court, or FISA Court, and the U.S. Foreign Intelligence Surveillance Court of Review. The FISA Court was tasked with deliberating on intelligence agency requests to conduct surveillance on people thought to be agents of foreign powers, and the FISA Review Court with reviewing decisions made in the FISA Court.
Since its establishment, all of the FISA Court’s decisions of the have been classified, casting a shadow over the domain of surveillance rulings. But last year, the Yale Law School’s Media Freedom and Information Access Clinic filed a claim with the FISA court to declassify FISA rulings whose dissemination does not threaten national security. The clinic is filing the claim along with the Knight First Amendment Institute of Columbia University, the National American Civil Liberties Union and the American Civil Liberties Union of the District of Columbia.
“We are seeking to vindicate the public’s First Amendment right of access to the Foreign Intelligence Surveillance Court’s judicial opinions,” said Meenakshi Krishnan LAW ’18, a student in the MFIA clinic. “Those opinions construe critical constitutional rights, including the scope of Americans’ Fourth Amendment privacy rights. A favorable … decision on the merits of our motion would help inform the public about the scope of government surveillance and help curb the spread of secret law.”
The immediate question is whether or not the clinic has a right to bring a claim to the lower court — that is, whether they have legal standing.
FISA-court Judge Rosemary Collyer initially ruled that the clinic did not have the right to fight in the court — that it lacked standing in the case. But that decision was overturned by the FISA court at large in a six-to-five decision. Now, the FISA Review Court has decided to review whether the clinic has standing to file the claim, and the clinic submitted its official brief on Friday.
“Virtually every court to confront a claim of access to judicial records … has either held or assumed that the denial of access to judicial records is an injury,” the brief reads, asserting that this injury is sufficient to establish standing. “[The court’s secrecy] obscures critical information necessary for the public to understand [its] reasoning and its holdings.”
Paulina Perlin LAW ’19, another student at the clinic, explained that the test for legal standing consists of three parts. To demonstrate standing, a claimant must first show he has incurred concrete, particularized and actual or imminent injury; that the injury can be fairly traced back to what is being challenged in court and that the remedy sought can redress the issue. The clinic is claiming that the FISA Court’s current system of classifying its rulings damages American citizens’ first amendment rights. The FISA Review Court is now deliberating on whether this fulfills the first of the three requirements.
Collyer ruled that such an injury cannot exist, as the public has no legal right to the court’s opinions.
In the government’s brief filed in FISA Review Court on Feb. 23, U.S. Assistant Attorney General for National Security John Demers argued not only that the clinic does not have the right to bring the case to the court but also that its larger argument could be detrimental to national security.
“[The clinic is arguing for] a standard that is considerably less protective of national security than the standard used by the Executive Branch,” the brief says.
The U.S. Department of Justice did not respond to request for comment.
The court of review is expected to hand down a decision in the coming months. It is unclear whether the court will hear oral arguments. Once a decision is reached, the losing side will have the ability to appeal the decision to the Supreme Court.
Laura Donohue, a professor at Georgetown University who wrote a third, independent brief for the case at the court’s request, said she is optimistic about the clinic’s argument for standing.
The FISA Review Court consists of three judges, each of whom serve for seven years.
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Correction, Feb. 28: A previous version of this article incorrectly stated that the three judges on the FISA Review Court are from the Washington, D.C. Court of Appeals.