After Edward J. Snowden’s leaks in 2013 disclosed that the court had authorized the bulk collection of logs of all Americans’ phone calls and emails under the USA Patriot Act, Congress passed a new law, the USA Freedom Act of 2015. Among other things, it required executive branch officials to make public, “to the greatest extent practicable,” decisions from the intelligence court that included significant legal determinations.
Critics say that is not enough, for two basic reasons. Under separation-of-powers principles, they say, courts rather than the executive branch should decide whether judicial opinions ought to be made public. And the 2015 law, at least according to the executive branch, does not apply to decisions issued before its enactment.
The A.C.L.U. filed a motion in the FISA court, seeking disclosure of major decisions issued between the Sept. 11 attacks and the 2015 law and arguing that the FISA court itself should decide whether disclosure of its decisions was required by the First Amendment.
“These court opinions are vitally important,” said Patrick Toomey, a lawyer with the A.C.L.U. “They can have far-reaching consequence for Americans’ privacy and free expression rights. It shouldn’t be up to the executive branch whether the public has access to them.”
A specialized appeals court ruled last year that the FISA court lacked the power even to consider whether there is a right of access to its decisions under the First Amendment. Though other federal courts routinely consider requests to unseal their own records, the appeals court ruled that the FISA court could not consider the constitutional question before it because Congress had not granted it the power to do so.
The jurisdictional issues in the case are tangled, but the larger questions it presents are not.
In a supporting brief, former government officials — including James Clapper, a former director of national intelligence, and John Brennan, a former C.I.A. director — wrote that excessive secrecy can result in indiscriminate and destructive leaking.
“Too much secrecy, in other words,” they wrote, “puts at risk the very intelligence operations that require secrecy to be effective.”