ACLU warns that major government surveillance decisions are happening in secret

ACLU warns that major government surveillance decisions are happening in secret
Official White House Photo by D. Myles Cullen

Supreme Court Justices

The American Civil Liberties Union (ACLU) is raising concerns about the level of transparency, or lack thereof, the U.S. government exercises when it comes to electronic surveillance.

On Tuesday, April 20, the non-profit organization discussed the role of the Foreign Intelligence Surveillance Court, (FISC) a specialized court responsible for the issuance of "secret legal opinions authorizing the U.S. government to conduct sweeping programs of electronic surveillance."

It has been noted that the FISC's use of secret legal opinion has had a major impact on "Americans' privacy rights, freedom of expression, and free association." Now, they are asking for the U.S. Supreme Court to execute an order for the FISC to publish its secret opinions and only implement redactions that are absolutely necessary to serve as a preventative measure where real harm is an threat to national security.

According to the petition filed by ACLU lawyers in corrorboration with former Solicitor General Ted Olson, Columbia University's Knight First Amendment Institute, and the Media Freedom and Information Access Clinic at Yale University, the organization argues that the the First Amendment grants the American public a "presumptive right of access to significant judicial opinions, including those of the FISC."

The organization highlighted the U.S. Supreme Court petition and the FISC's operations.

The FISC operates behind closed doors and does not customarily publish its decisions. Although Congress required the government to review significant FISC opinions for declassification and public release when it passed the USA FREEDOM Act in 2015, that review is conducted solely by executive branch officials, not a court. In addition, the government has refused to apply this requirement to FISC opinions issued prior to June 2015.

According to the ACLU, there are also a number of discrepancies with the FISC, its special court of appeals known as the Foreign Intelligence Surveillance Court of Review (FISCR) and both entities' inaccurate stance on the First Amendment. The non-profit argues that both courts actually lack the jurisdiction to even take certain motives into consideration.

The ACLU argues:

As we argue in our petition, the FISC and FISCR were wrong about the First Amendment. Our legal system is founded on the presumption that laws are public. That presumption applies to all judicial opinions containing significant interpretations of law. There's no special exception for opinions involving government surveillance and national security.

In reference to the FISC and FISCR's jurisdiction, the ACLU notes that "all courts created under Article III of the Constitution, including the FISC and FISCR, have inherent authority over their own records."

As a result of placing its legal opinion outside of the ramifications of the First Amendment, ACLU argues "the FISC has deprived the public of information that's vital to understanding how the FISC has interpreted the law, and the government surveillance that it has authorized."

Now, they are advocating for the U.S. Supreme Court to properly enforce the authentic rights provided under the First Amendment.

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