Brief To FISA Court Says The Presumption Of Openness Should Apply There, Too

The court system belongs to the people. That’s what a “presumption of openness” means. It’s a public system, accessed by the public or by representatives of the public. With rare exception, documents filed with the court system should be made available for viewing by the public.

The FISA court, which oversees a multitude of surveillance programs and national security investigations is a closed book. Until very recently, it operated in total darkness, much like the agencies seeking its approval for surveillance. The Snowden leaks changed that, moving it very slightly closer to a presumption of openness.

The Director of National Intelligence — nodding towards transparency in a mostly self-serving way — has begun to declassify orders and rulings from the FISC. But a majority of FISC documents released by the ODNI haven’t come from this hesitant step towards transparency. They’ve been forced out the government’s hands by numerous FOIA lawsuits.

Access to court documents shouldn’t have to be litigated, even in the FISA court. That’s the argument being made by Georgetown professor Laura K. Donohue in her FISA court brief [PDF]. The long, very interesting brief covers a number of issues and government arguments, but it all boils down to public access as a presumption, rather than a grudging concession after a courtroom loss in a FOIA case.

Her brief note the FISA court controls the documents submitted to it and the orders/opinions it issues. When it decides its subservient to surveillance agencies and their national security assertions, the system of checks and balances is thrown out of whack. That’s what’s happened over the 40 years the court has been in operation. Government agencies and a number of administrations have decided it does not have the discretion to handle the release of court documents.

This is obviously wrong. Donohue’s brief sets the stage with a dismantling of the government’s opacity arguments — all designed to override the court’s inherent authority to control the release of court documents. [Paragraph breaks added for readability.]

FISC has inherent supervisory authority over its own records and therefore exercises non-statutory jurisdiction over all common law and First Amendment public rights of access. Each of the… arguments offered by the response brief to the contrary fails.

First, the jurisprudence establishes that no statutory cause of action is required for the court to exercise its inherent powers. The court with original jurisdiction over the case oversees all contemporaneous and future motions for access to records. None of the myriad inherent powers cases at issue rely on a separate, statutory cause of action. The FISC would have to rule against the Supreme Court, every circuit, and four prior decisions of the FISC, to find for the government…

There’s plenty of precedent to be had but the government wants to ignore it. Instead, it would rather funnel access through the FOIA process so it can retain complete control over documents filed in court, claiming the court’s power for itself. But the government also wants it both ways and will “allow” the FISC to control court documents if it seems like a better route for an FOIA denial.

FOIA cannot serve as a substitute for judicial action as it does not (because it cannot) create a cause of action for records held by the judiciary. That statute focuses exclusively on agency records. Regardless of whether the executive branch happens to have judicial records in its files, as the Supreme Court has held, courts retain jurisdiction over their own documents.

The government response brief is further in tension with two arguments that the government has elsewhere raised. In both district court and at the FISC, it has argued that even under FOIA, FISC opinions are still subject to the FISC’s control, suggesting that the court does, in fact still retain jurisdiction. Perhaps more concerning, the government has gone into district court and argued that because the FISC is a specialized court, the district court should not exercise jurisdiction over FISC records-an argument at odds with the argument it advances in its representations to this court, where it suggests that (non-specialized) district courts have jurisdiction over FISC documents.

The presumption of openness and disclosure should include the FISA court. The American public has a right to know what the government’s doing with its money and its tacit approval. If there are national security concerns, they must be explicitly detailed rather than broad-brushed across a stack of documents. The FISC should ensure the government doesn’t cut corners on its redaction paperwork.

And that’s the very reason redacting exists. The government could allow the release of documents as soon as they’re redacted (after making their case in court) to protect national security interests. Opening up the FISA court doesn’t mean exposing a long list of surveillance means and methods. It simply means treating the FISA court like any other federal court where documents and dockets can be viewed by the public to better educate themselves on legal processes, issues, and government activities. Considering the NSA’s long history of abuses, the more eyes on the process the better, especially when its oversight has devolved into a partisan point-scoring exercise.

The never-before-seen release of FISA warrant affidavits should be the tip of the iceberg. There’s a lot the court oversees and it’s doing it with almost no assistance from the outside. This leaves it at the mercy of the agencies seeking its approval. That’s not the way the system should work.

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