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ACLU Urges Supreme Court to Allow Release of Secret Court Documents

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By Peter Malbin | Monday, 20 September 2021 11:49 AM EDT

The Supreme Court is potentially set to hear a case brought by the American Civil Liberties Union (ACLU) concerning decisions issued by the Foreign Intelligence Surveillance Court. The case involves whether the public has the right under the First Amendment to access secret decisions issued by a federal court.

Last month, the Justice Department led by Attorney General Merrick Garland told the Supreme Court that the public had no right of access under the First Amendment to secret decisions issued by a federal court, The New York Times reported. The justices are set to consider whether to hear that case at their private conference on Oct. 8.

Six months before he was nominated to be attorney general, then-Judge Garland wrote a strong opinion on the importance of openness in the justice system. That case and the one before the justices both involved electronic surveillance, but they concerned different laws and different legal theories, The New York Times reported.

Groups from across the political spectrum are opposing secret laws. According to a brief supporting the ACLU, the left-leaning Brennan Center for Justice, and the Americans for Prosperity Foundation, a libertarian group affiliated with the Koch family, wrote, "Secret law of all types causes several concrete harms that are antithetical to democratic norms. Secret law prevents the public from understanding and shaping the law and thus inhibits democratic accountability; disables checks on governmental abuses of the law; and weakens the quality of the law itself."

The surveillance court, created by the Foreign Intelligence Surveillance Act of 1978, or FISA, rules on government surveillance requests and programs in the context of national security.

In 2015, Congress passed a new law, the USA Freedom Act, that required executive branch officials to make public, "to the greatest extent practicable," decisions from the intelligence court that included significant legal determinations. The 2015 law does not apply to decisions issued before its enactment.

The ACLU filed a motion in the FISA court, seeking disclosure of major decisions issued between the Sept. 11 attacks and the 2015 law, arguing that the FISA court should decide whether disclosure of its decisions was required by the First Amendment.

"These court opinions are vitally important," said Patrick Toomey, a lawyer with the ACLU, reported The New York Times. "They can have far-reaching consequence for Americans’ privacy and free expression rights. It shouldn’t be up to the executive branch whether the public has access to them.

"One of the key questions here," Toomey said, "is whether the Supreme Court can and should exercise its powers of review over the FISA court’s decision making."

Brian Fletcher, the acting U.S. solicitor general, said the ACLU had "greatly overstated" the practical effect of being denied a constitutional right of access to major decisions of the surveillance court before the 2015 law.

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