WASHINGTON (AP) – The Supreme Court on Monday declined to hear an appeal on whether the public should have access to the opinions of the secret court reviewing mass email collections, warranty-free internet searches and other government surveillance programs.
The judges denied appeals from civil rights and media rights groups, arguing that the public had a constitutional right to see significant opinions of the Foreign Intelligence Surveillance Court. They also argued that federal courts, not the executive branch, should decide when to publish opinions that could compromise the privacy of millions of Americans.
Judge Neil Gorsuch and Judge Sonia Sotomayor said they heard the case. Gorsuch wrote that the case “raises questions about the right of public access to … litigation of grave national concern”.
“If these matters are not worthy of our time,” he wrote, “then what?”
The Biden government had opposed a high court review, arguing that not even the Supreme Court had the power to review the case under federal law. In addition, the administration said much of the material sought in this case has already been made public through Freedom of Information Act requests.
The Foreign Intelligence Surveillance Court was established in 1978 to receive requests from the FBI to wiretap individuals suspected of being agents of a foreign power, such as potential spies or terrorists. After September 11, 2001, Congress expanded the court’s role to include comprehensive surveillance programs.
In recent rulings, the judges ruled that the opinions solicited by the groups should not even be published in a censored form and that they did not even have the power to consider publishing the opinions.
Legislation, passed in 2015, contains a provision that requires the government to consider publishing significant FISA judicial opinions. However, the law does not apply to opinions drawn up prior to its adoption and leaves the review process entirely to the executive.
The appeal was filed by Theodore Olson, the American Civil Liberties Union, Columbia University’s Knight First Amendment Institute, and Yale Law School’s Media Freedom and Information Access Clinic. Olson serves on the board of directors of the Knight Institute and was the chief attorney of the Bush administration’s Supreme Court when the role of the FISA court expanded after the 9/11 terrorist attacks.