Judicial Review of Government Surveillance (Part 1)

Civil Liberties Union (ACLU) v. United States. The petition for a writ of certiorari is denied. Justice Gorsuch dissented from the Court’s refusal to rule on the ACLU’s petition. He was joined in dissent by Justice Sotomayor.

The dissent wrote in relevant part: In response to allegations of wrongdoing by the Nation’s intelligence agencies, in 1975 Congress convened a select committee chaired by Senator Frank Church to investigate. Ultimately, the Church committee issued a report concluding that the federal government had, over many decades, “intentionally disregarded” legal limitations on its surveillance activities and “infringed the constitutional rights of American citizens.” In the wake of these findings, Congress enacted the Foreign Intelligence Surveillance Act of 1978, codified at 50 U. S. C. §1801 et seq. The statute created the Foreign Intelligence Surveillance Court (FISC) and empowered it to oversee electronic surveillance conducted for foreign intelligence purposes. See §1803(a).

The statute also created the Foreign Intelligence Surveillance Court of Review (FISCR) to hear appeals from the FISC’s rulings. The FISC now comprises 11 Article III federal district court judges, and the FISCR comprises 3 additional Article III judges. With changes in technology and thanks to various legislative amendments, these courts have come to play an increasingly important role in the Nation’s life. Today, the FISC evaluates extensive surveillance programs that carry profound implications for Americans’ privacy and their rights to speak and associate freely. See, e.g., ACLU v. Clapper, 785 F. 3d 787, 818 (CA2 2015). Like other courts, the FISC may announce its rulings in opinions that explain its interpretation of relevant statutory and constitutional law. Unlike most other courts, however, FISC holds its proceedings in secret and does not customarily publish its decisions. See §1803(c); In re Motion for Release of Court Records, 526 F. Supp. 2d 484, 488 (FISC 2007).

Open access to the courts is a hallmark of a free society. Without access to the court proceedings or published decisions, these Foreign Intelligence Courts appear to be little more than rubber-stamps for the government.