The Project for Privacy and Surveillance Accountability plans to file an amicus brief supporting an effort by the American Civil Liberties Union to require the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR) to make their opinions public.
PPSA blogged about this issue last September and remains deeply concerned by the fact that the courts have interpreted their jurisdiction so narrowly that they have largely insulated themselves from any accountability.
“A secret court issuing secret opinions shaping the scope of secret government surveillance is inherently offensive to the Constitution,” said Gene Schaerr, PPSA’s general counsel. “If it is true that FISC and FISCR lack jurisdiction to even consider constitutional challenges, then the public will never know what the government is doing in its name. Kudos to the ACLU for taking the lead on asking the Supreme Court to take a definitive stand. PPSA is proud to join with our peers in the civil liberties community to support this effort.”
Ted Olson, who was head of the Justice Department Office of Legal Counsel under President Reagan, oversaw the practices of the National Security Agency. He is now leading the team asking the Supreme Court to allow the American public to learn about government surveillance.
“While some disclosures are allowed, it is the executive branch that decides what we can and cannot know,” Schaerr said. “There is no conceivable justification for judicial secrecy under our Constitution. We hope the Supreme Court takes this case, because if it does, the Justices will surely side with the Constitution.”
Schaerr also noted that this case highlights the need for passage of the Lee-Leahy amendment to the Foreign Intelligence Surveillance Act, which would require the FISA court to include an independent expert in any case with significant constitutional implications. Co-sponsored by Sens. Patrick Leahy (D-VT) and Mike Lee (R-UT), the Lee-Leahy amendment passed the Senate with 77 votes last year.