Late last year, the FISA Court did something it had never done before. It performed an en banc review of an earlier decision to determine whether or not the ACLU had standing to petition the court to release decisions pertaining to ongoing surveillance programs. The judges found the ACLU could continue its legal battle -- one it has waged on and off for more than a decade. It pointed out the ACLU had raised enough of a First Amendment allegation to be heard, although it wasn't particularly optimistic about its ability to overturn decades of FISA court secrecy.
The FISA court has posted the opening briefs from both parties. The government's brief [PDF] basically argues that the court has worked in near-total darkness for years and it should go on doing so for years to come. The phrase "national security" is used frequently. It points to two earlier petitions by the ACLU -- filed with different FISA judges -- as having set up a dilemma the government shouldn't even need to address. Judge Saylor's opinion in 2013 opened the door for the ACLU's standing, finding the ACLU was entitled to access at least one opinion dealing with bulk collection authority.
Judge Collyer's decision, released only months later, made no such finding. Instead, Collyer noted the court's secrecy was essential to the nature of the surveillance it approved and the ACLU had no standing to allege a violation of a First Amendment right to access FISA court documents. The government argues Collyer's decision was correct, not the one recently reached by the full panel of FISA judges.
There is similarly no substantial argument that it is logical to open up the FISC's proceedings to public view. The FISC's "entire docket relates to the collection of foreign intelligence by the federal government." In re Motion for Release, 526 F. Supp. 2d at 487. Its operations are governed "by FISA, by Court rule, and by statutorily mandated security procedures issued by the Chief Justice of the United States," which together "represent a comprehensive scheme for the safeguarding and handling of FISC proceedings and records." Id. at 488. The FISC has thus correctly found that ''the detrimental consequences of broad public access to FISC proceedings or records would greatly outweigh any" benefits, and . . that these harms "are real and significant, and, quite frankly, beyond debate."
The government also points out the FISA court has no power to declassify court proceedings. In fact, it argues the court overseeing government surveillance programs doesn't have enough information on hand to make that determination… which is a weird thing to say about people who review surveillance requests.
The Constitution assigns responsibility for classifying and controlling access to national security information to the Executive rather than the judiciary because only the former has the expertise and resources to make the necessary national security determinations.
The ACLU's brief [PDF] argues that FISA court precedent isn't the only precedent the court should consider. It points out that every court that has handled the issue has determined, to some extent, that denial of access to court records is an arguable First Amendment injury.
It then goes on to point out that the few times the FISA court has ordered the release of an opinion, the government has redacted so much that the released documents are useless. On top of its arguments that it should be allowed to proceed with its argument for access, the ACLU also suggests the court take a more active role in moderating the government's redaction efforts. As it points out, prior challenges of government secrecy assertions by the court have shown the government is unable to justify its redaction demands.
Critically, there is no indication in the public record that the FISC had any role in determining which portions of its own opinions should be made public. The government appears to have determined unilaterally which parts of the FISC's orders should be redacted and kept secret. By contrast, in response to a separate access motion brought by the ACLU, the FISC required the government to explain and justify its proposed withholdings in another FISC opinion. That review proved essential to securing public access to the court's opinion. Once required to defend its withholdings, the government abandoned many of them.
It also cautions the court against conflating standing with merit. As the FISA en banc review determined, all that's needed to bring a case is a cognizable injury. The merits of the case will be determined at a later date. The government's brief -- along with the dissenting opinion from the en banc hearing -- wish to substitute merit for standing in order to prevent any further discussion about public access to FISA court documents. All the ACLU wants is a chance to prove its case. The government wants the ACLU to be denied this opportunity altogether.
There's no date set for a ruling so it may be several months before the FISA court hands down a decision. (And several more months after that if the government feels something needs to be redacted.) But this shows the FISA court is at least willing to entertain the ACLU's arguments, even if the end result is a return to the status quo.