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Center for Ethics and the Rule of Law

 


First Amendment, Foreign Intelligence Surveillance Court • May 05, 2021

Conjuring a ‘First Amendment right of public access’ to FISC court decisions is dangerous for U.S. intelligence

by George W. Croner

 

The opinions expressed in this post are those of the author and do not necessarily represent CERL’s official views.

As has now been widely reported, last month the American Civil Liberties Union (ACLU), represented by a consortium of lawyers drawn from a host of First Amendment advocacy groups, filed a petition with the U.S. Supreme Court requesting that it, as described in an article appearing in Just Security, “order the Foreign Intelligence Surveillance Court (FISC) to publish its secret opinions, redacted only as necessary to prevent genuine harm to national security.”

The petition seeks to upend the current process that serves to ensure that the content of important FISC opinions is made available to the public in a form that is consistent with the preservation of national security. The petition’s advocates insist that a broader right of access, grounded in the First Amendment, is required because “these opinions [from the FISC] have had a profound impact on Americans’ right to privacy, free expression, and free association [but] many of them are entirely hidden from public view.”

There can be little doubt that the target of those filing this petition with the Supreme Court is Section 702. FISA surveillances executed under FISA’s “traditional” Title I authority generate between 1,000-2,000 applications per year, only a fraction of which are directed at U.S. persons. The standard for surveilling a U.S. person under Title I requires a showing of probable cause that the target is knowingly engaging in clandestine intelligence or terrorist activities on behalf of a foreign power where those activities involve, or may involve, a violation of U.S. criminal statutes—a standard virtually guaranteeing that any FISC opinion will be fact intensive and of limited general application. Consequently, no FISC order issued under Title I is likely to have a “profound impact” on the rights of Americans.

Intuitively, then, only one “sweeping program of electronic surveillance” conducted under the authority of FISA presents the “profound impact” argued by those seeking enhanced access to FISC opinions—the Section 702 collection program. Nor is it surprising to see the assemblage of those supporting the petition take further aim at Section 702 because they have been attacking that surveillance authority both in public advocacy and in litigation for years. In Clapper v. Amnesty International USA, some of the same lawyers who filed last week’s petition unsuccessfully sought to enjoin Section 702 surveillance and have that part of FISA authorizing Section 702 declared unconstitutional. The Supreme Court concluded that the plaintiffs lacked the standing necessary to pursue their claims. In Wikimedia Foundation v. NSA, the ACLU found a different client, the Wikimedia Foundation, and again sought to have Section 702 declared unconstitutional as violating its First and Fourth Amendment rights. After years of litigation, the federal court granted the government’s motion for summary judgment, and that decision is now on appeal. Yet another Section 702 opponent, the Electronic Frontier Foundation, acting with the ACLU’s assistance, unsuccessfully sought to have Section 702 declared unconstitutional in Jewel v. NSA, a case filed over a decade ago. In April 2019, the federal court handling the Jewel litigation also awarded the government summary judgment, and that decision, too, is now on appeal.

Aside from the lack of success opponents have had in challenging the constitutionality of Section 702, it also bears note that while all of these cases were resolved in the government’s favor before any trial proceeding, the Wikimedia and Jewel courts were presented with factual predicates sufficiently developed to allow them to observe that the descriptions provided by the ostensibly aggrieved plaintiffs in each of those cases in which those plaintiffs purported to explain the technical operation of the Section 702 program were flawed. The Jewel court described plaintiffs’ proffered characterization of Section 702 operations as “substantially inaccurate,” while the Wikimedia court concluded that plaintiffs’ presentation was based on “speculative presumptions about the NSA’s surveillance practices and priorities.” Consequently, there is plenty of reason to question whether any of the parties supporting this petition to the Supreme Court can attest, with any level of verifiable accuracy, that Section 702 is a “sweeping program of electronic surveillance” having a “profound impact on Americans’ rights to privacy, free expression, and free association” that is affecting “the rights of millions of people.” Nothing in the public domain supports these exaggerated characterizations.

Given the documented antipathy for Section 702 by those petitioning the Supreme Court, this latest effort to undermine the security of the Section 702 collection program is unsurprising. The ACLU acknowledges that its Supreme Court petition “has its origins in the disclosures made by Edward Snowden” thus continuing its deification of one who in rapid succession: violated his consensually executed non-disclosure agreement; ignored existing whistleblower protections available to those working in the Intelligence Community; stole government property; fled the United States rather than deal with the consequences of his conduct; and continues to avoid a return and public trial that would almost certainly lead to his conviction. Despite this, Snowden certainly has his apologists, but nothing that Snowden revealed offers any support for this effort to strip essential national security protections from the process that produces the versions of FISC opinions made available for public consumption.

Supporters of the petition issued fawning endorsements of the requested First Amendment right of access arguing that “[p]ublication of the FISC’s opinions is crucial to public understanding of the nation’s surveillance laws.” By way of specific example of those “surveillance laws,” the authors point to “sweeping surveillance programs including the government’s warrantless and suspicionless search of private emails; the government’s bulk collection of internet and telephone metadata; and the government’s surreptitious installation of malware.” One might tend to support the broader disclosures sought in the ACLU Supreme Court petition if any plausible evidence was offered to support the intimation that these activities continue unabated and unknown to the general public.

Instead, the link to “warrantless and suspicionless searches of private emails” takes you to several articles published by The Guardian in 2013 and 2014. Not surprisingly, those Guardian articles make no reference to the NSA minimization and querying procedures that control the retention and dissemination of U.S. person communications acquired under Section 702 authority or, more particularly, to the NSA querying standard requiring prior approval by the NSA Office of General Counsel of “any United States person query term used to identify and select unminimized Section 702-acquired content.” No Supreme Court intervention is needed to gain access to these NSA minimization and querying procedures; anyone interested can find appropriately redacted versions of them on the internet.

Similarly, the suggestive reference to the “government’s bulk collection of internet and telephone metadata” is inexplicably dated. The current Call Detail Record provisions that were significantly overhauled by the USA Freedom Act in 2015, and the manner in which they are employed, are fully transparent.

The final accusation pointing to “the government’s surreptitious installation of malware” is equally puzzling. The proffered link points to a disjointed series of FBI documents, none of which are dated later than 2007, apparently produced pursuant to a FOIA request. The documents are bereft of any information demonstrating the “government’s surreptitious installation of malware.” Equally germane, given the petition’s call for greater access to FISC opinions, none of the links supplied in the Just Security article provide any credible inference that there are secret FISC opinions addressing any of the referenced topics.

Notably, petitioners are asking the Supreme Court to invent a “qualified First Amendment right to access” in an area where Congress already has spoken. After adjustments made by the USA Freedom Act in 2015, FISA specifically calls for the public disclosure of each decision of the FISC [and of the Foreign Intelligence Surveillance Court of Review (FISCR)] “that includes a significant construction or interpretation of any provision of law, including any novel or significant construction of the term ‘specific selection term,’ and, consistent with that review, make publicly available to the greatest extent practicable each such decision, order or opinion.” The legislative history that accompanied Congress’s creation of this new disclosure requirement as part of the USA Freedom Act is careful to note that a novel or significant interpretation of law does not include “routine, fact-based FISA applications that do not present novel legal or technological issues.”

Significantly, the mechanics attending the public release of FISC opinions under the requirement created by the USA Freedom Act must be pursued consistently with FISA’s core provisions related to protecting national security. Recognizing the highly sensitive and unique work performed by the FISC, § 103(c) of FISA requires that all records of FISC proceedings “be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence.” The procedures established by the Chief Justice provide that all court records containing classified national security information be maintained “according to applicable Executive Branch security standards for storing and handling classified nation security information.” These congressional and supervisory mandates are carried over to the FISC’s own Rules of Procedure which provide that “in all matters” the FISC “comply with the security measures established by [FISA] as well as Executive Order 13526.”

Thus, a necessary step in preparing any FISC decision for public disclosure is a declassification review using the classification standards provided by E.O. 13526. Those standards permit classification only where the unauthorized disclosure of information reasonably could be expected to result in identifiable damage to the national security and, as specified by Congress, the review of the FISC decision is conducted by the “Director of National Intelligence in consultation with the Attorney General;” i.e., the same two national security officials with whom Congress requires the Chief Justice to coordinate in establishing the security procedures governing FISC records.

The declassification process is a painstaking one. In a 2013 letter to the Senate Intelligence Committee, which had requested that the FISC “consider providing written summaries of its significant opinions in a manner that permits declassification by separating the classified facts from the legal analysis,” former FISC Presiding Judge Reggie Walton described the “serious obstacles” to such an undertaking. Judge Walton wrote:

For FISC opinions specifically, there is also the very real problem of separating the classified facts from the legal analysis. While classification determinations are made by the Executive Branch in the first instance, the facts presented in applications to the FISC always or almost always involve classified intelligence activities, the disclosure of which could be harmful to the nation’s security. As members of Congress who have seen the opinions know, most FISC opinions rest heavily on the facts presented in the particular matter before the court. Thus, in most cases, the facts and the legal analysis are so inextricably intertwined that excising the classified information from the FISC’s analysis would result in a remnant void of much or any useful meaning. Consequently, the summaries you request are unlikely, as a general matter, to serve the purpose of meaningfully informing the public about the FISC’s determinations.

A year later, then FISC Presiding Judge John Bates reminded Congress that:

In many cases, public disclosure of Court decisions is not likely to enhance the public’s understanding of FISA implementation if the discussion of classified information within those opinions is withheld. Releasing freestanding summaries of Court opinions is likely to promote confusion and misunderstanding.

These concerns appear lost on those pursuing a Supreme Court-mandated qualified First Amendment right of access who, by all appearances, seek to jettison the declassification process mandated by the existing interlocking framework of security procedures in favor of an undefined system that, in the words of the Just Security article, will produce opinions “redacted only as necessary to prevent genuine harm to national security.” One is left to speculate on what standards such an approach will employ and who will apply those standards. The imprecision in this amorphous language is all the more striking given that E.O. 13526 already authorizes classification only where the classifying authority is able “to identify or describe the damage [to national security]” that would result from the unauthorized disclosure of any specific piece of information.

The argument fashioned by those supporting the ACLU’s Supreme Court petition attempts to blend a threadbare base of anecdotal surveillance excesses with a distorted exaggeration of the impact of U.S. intelligence activities on U.S. persons to insist that broader public access is needed to the workings of the FISC. Not coincidentally, such access will create an increased threat of exposing sensitive intelligence sources and methods because, as Judge Walton informed Congress in 2013, the facts disclosed as part of the FISC’s work “always or almost always involve classified intelligence activities, the disclosure of which could be harmful to the nation’s security.” Moreover, as Judge Walton continued, “the facts and the legal analysis [in a FISC opinion] are so inextricably intertwined that excising the classified information from the FISC’s analysis would result in a remnant void of much or any useful meaning”—a result that surely will be unsatisfactory for those insisting there is a “qualified First Amendment right of access” to those FISC opinions. One need not be a savant to foresee the hemorrhaging of classified intelligence information that will likely result from this new right of access that permits redaction “only as necessary to prevent genuine harm to national security.”

As the Supreme Court will presumably recognize, this is a legal maneuver fraught with bad national security consequences. The Court’s past jurisprudence acknowledges that “there are some kinds of government operations that would be totally frustrated if conducted openly.” FISC proceedings are the paradigm of one of those “kinds of government operations;” designed by Congress to function in the secrecy necessary to protect some of the nation’s most vital secrets while supplying the necessary judicial oversight of government applications for electronic surveillance in the foreign intelligence setting. The legal issues raised by the ACLU’s petition are deserving of a more thorough analysis once the government has responded to the petition. Yet it is not too early to suggest that sacrificing the security essential to U.S. intelligence operations so that those seeking a “silver bullet” to kill the Section 702 collection program are given more, and potentially more revealing, FISC decisions to peruse distorts the principles of a First Amendment right to access while unnecessarily undermining the careful security protections that represent the considered efforts of both the legislative and executive branches in this area where “no governmental interest is more compelling.”

George W. Croner was the principal litigation counsel in the Office of General Counsel at the National Security Agency (NSA). He is a senior fellow at the Foreign Policy Research Institute (FPRI) in its national security program and a member of CERL’s Advisory Council. @GeorgeCroner

 

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