On FISA and Access to the Law

331490_big_brotherAccess to opinions and codes is of particular interest to the bloggers at Justia. We complain mightily about private citation formats, paywalls to codes and caselaw online, privatization of court services and filings, and the government’s overall failure to provide us with official, free access to the public record. Last week’s news about the reauthorization of the FISA Amendments Act, however, highlights an altogether different problem of access to the law: secret, sealed court opinions from the nation’s Foreign Intelligence Surveillance Act Court. This body of law is not available for free or for purchase. It is sealed and hidden from the American people.

There is plenty of news coverage about the Act, and plenty of opinions online about the threat it poses to the freedom and privacy of Americans and non-Americans here and abroad. I’d like to highlight the problem of access to the output of the FISA Courts, and why we are still in the dark about their decisions – decisions that are legally binding precedent but that we know nothing about.

The Foreign Intelligence Surveillance Act was enacted in 1978. It was codified at 50 USC 1801 et seq.  FISA sets forth rules on collecting surveillance data on agents of  a foreign power. That law was amended by the FISA Amendments Act in 2008, codified at 50 USC 1881 et seq. Those amendments broadened the scope and released third party telecommunications companies from liability for assisting the government in its search. The FISA Amendments Act expired on 12/31/2012, and last week, Congress voted to extend it to 2017. FISA is more colloquially known as the “warrantless wiretap act” because it permits warrantless searches of information over phones and computer networks in certain investigations.  For a more detailed overview, see EPIC’s page.

The Foreign Intelligence Surveillance Act Courts, created by 50 USC 1803, have jurisdiction over FISA warrants and activities. The FISA Court of Review is available to hear appeals. Appeals from there may be submitted to the Supreme Court of the United States, under seal.

The text of FISA doesn’t specifically require opinions or orders to remain sealed, but since most of the information going in is classified and under seal, the opinions remain behind the government firewall. 50 USC §1881 (k) prescribes that: “All petitions under this section shall be filed under seal. In any proceedings under this section, the Court shall, upon request of the Government, review ex parte and in camera any Government submission, or portions of a submission, which may include classified information.” 50 USC 1803, which creates the FISA Courts, contemplates appeals to the USSC, which should be sealed:

The Chief Justice shall publicly designate three judges, one of whom shall be publicly designated as the presiding judge, from the United States district courts or courts of appeals who together shall comprise a court of review which shall have jurisdiction to review the denial of any application made under this chapter. If such court determines that the application was properly denied, the court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.

In the FISA Rules of Court, Rule 62 governs the publication of opinions and orders. Under this Rule, the Court may choose to publish documents sua sponte, and the Government may release documents without a court order. In Rule 62 (a) “The Judge who authored an order, opinion, or other decision may sua sponte or on motion by a party request that it be published.  Upon such request, the Presiding Judge, after consulting with other Judges of the Court, may direct that an order, opinion or other decision be published.  Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that properly classified information is appropriately protected pursuant to Executive Order 13526 (or its successor).” Rule 62 (b) “Other Records” states that: “Except when an order, opinion, or other decision is published or provided to a party upon issuance, the Clerk may not release it, or other related record, without a Court order.  Such records must be released in conformance with the security measures referenced in Rule 3.” Rule 62 sets the default option for the output of the FISA Court as not published, or sealed. The BlueBook, ever thorough, does provide a citation format for FISA Opinions. Per Rule 10.4, use FISA Ct. and FISA Ct. Rev.

As far as I can tell, the FISA Court has issued only one opinion, in May 2002. The case does not even have a name; the best I can do to cite it is In re all matters submitted to the Foreign Intelligence Surveillance Court, FISA Ct. (2002). This case was appealed to the FISA Court of Review, which also published its opinion on the matter. That opinion, In re Sealed Case, is discussed in the following paragraph.

The FISA Court of Review, which hears appeals from the FISA Court, has published two opinions. The first, In re: Sealed Case, is published at 310 F.3d 717 (2002) [the DOJ published the slip]. In that case, the FISA Court imposed restrictions on aspects of the Government’s surveillance, and the Government appealed, seeking permission to implement those. The FISA Court of Review held that the restrictions were not required by FISA or the Constitution, and remanded the case back to FISA to remove the restrictions. The second opinion, In re: Directives pursuant to Section 10(5)(b) of the Foreign Intelligence Surveillance Act, published at 551 F.3d 1004 (2008), challenged the legality of a directive compelling a communications service company to assist the government in acquiring information on third parties reasonably believed to be outside the United States. The analysis was centered on the Protect America Act, which was later repealed and superceded by the FISA Amendment Act of 2008. The FISA Court of Review held for the government, and found the PAA to be constitutional, and the directive valid. Unlike In re Sealed Case, In re Directives is redacted in several areas. In re Directives cites the prior FISCR case throughout.

In re Directives issues the following order regarding publication:

WHEREAS,

1. An opinion that addresses and resolves issues of statutory and constitutional significance has been filed under seal;

2. It would serve the public interest and the orderly administration of justice to publish this opinion;

3. Publication of an unredacted opinion would disclose materials that have been properly classified by the Executive Branch;

4. Redactions, after consultation with the Executive Branch, can be made to exclude such classified materials without distorting the content of the discussion of the statutory and constitutional issues;

5. Such redactions have been made by the Court;

IT IS HEREBY ORDERED that:

1. The redacted opinion shall be published in the usual manner employed by the United States Courts of Appeals.”  (1016)

In this case, then, the Court did not unseal the underlying opinion by the FISA Court.

FISA warrants have also been addressed in published opinions by other courts. See U.S. v. Duggan, 743 F.2d 59 (2d Cir. 1984) and U.S. v. Megahey, 553 F.Supp. 1180 (E.D.N.Y. 1982); challenging evidence admitted in furtherance of a prosecution obtained without a warrant under FISA. Since the issues are raised in a public, non-secret court, the opinions are published just like any other.

In 2010, the Justice Department and the Office of the Director of National Intelligence established a procedure to declassify the opinions of the FISA Court, and FISA Court of Review,  that contained “important rulings of law.” In 2012, the Federation of American Scientists submitted a FOIA request to produce the declassified opinions, but the request was returned with “no records found.” According to declassified information from their semiannual reports, the court is hearing upwards of 1,000 petitions per year.  It seems unlikely that in two years, not one of these cases generated an opinion that dealt with “important rulings of law,” but there you have it.

Without expounding on the merits of FISA – that is a much more involved debate – I think the lack of transparency for the Court’s decisions is troubling. There is certainly a delicate balance involved here. I do not take my safety as a citizen for granted, but we have an absolute right to know the law to which we are held accountable.

In In re Directives, Judge Selya describes the balance as thus:

Our government is tasked with protecting an interest of utmost significance to the nation — the safety and security of its people. But the Constitution is the cornerstone of our freedoms, and government cannot unilaterally sacrifice constitutional rights on the altar of national security. Thus, in carrying out its national security mission, the government must simultaneously fulfill its constitutional responsibility to provide reasonable protections for the privacy of United States persons. The judiciary’s duty is to hold that delicate balance steady and true. (1016).

I contrast this statement with this rather hubristic nugget I found on the website for the Federal Judicial Center.  In describing the relationship between FISA Ct. and FISA Ct. Rev, the FJC tells us “Because of the almost perfect record of the Department of Justice in obtaining the surveillance warrants and other powers it requested from the Foreign Intelligence Surveillance Court, the review court had no occasion to meet until 2002.” I assume that by “perfect,” the author means that the court has not turned down any requests, and thus the government has not had occasion to appeal. But reading that description sends a little chill down my spine. To the lay person, it means the Court and Government have been without fault in their surveillance. We have no idea what standards, outside of the 4 corners of the statute and the 2 cases that discuss it, the Court is applying to make these decisions.  Court opinions serve an objective beyond research material for lawyers. They inform the public of exactly how courts are arriving at their decisions. They provide transparency to the legal system to which we are all held accountable. They also provide us with a mechanism by which to keep the judiciary in check:  their work is available for all of us to review. In the case of FISA and FISA Ct. Rev., we are in the dark.

For fun, check out the CATO Institute’s video on FISA http://freegovinfo.info/node/3840

Also check out Clapper v. Amnesty Int’l, an ongoing case regarding FISA and challenging its constitutionality.