Amicus Curiae Brief — American Civil Liberties Union, Petitioner v. United States

No. 20-1499

In the Supreme Court of the United States

__________

AMERICAN CIVIL LIBERTIES UNION, Petitioner

v.

UNITED STATES

__________

On Petition for a Writ of Certiorari

to the United States Foreign Intelligence

Surveillance Court of Review

__________

BRIEF OF PROJECT FOR PRIVACY &

SURVEILLANCE ACCOUNTABILITY

AS AMICUS CURIAE SUPPORTING

PETITIONER

__________

GENE C. SCHAERR

ERIK S. JAFFE

Counsel of Record

HANNAH C. SMITH

KATHRYN E. TARBERT

JOSHUA J. PRINCE

SCHAERR |JAFFE LLP

1717 K Street, NW, Suite 900

Washington, DC 20006

(202) 787-1060

ejaffe@schaerr-jaffe.com

QUESTIONS PRESENTED

The questions presented are:

1. Whether the FISC, like other Article III courts,

has jurisdiction to consider a motion asserting that the

First Amendment provides a qualified public right of

access to the court’s significant opinions, and whether

the FISCR has jurisdiction to consider an appeal from

the denial of such a motion.

2. Whether the First Amendment provides a

qualified right of public access to the FISC’s

significant opinions.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................. i

TABLE OF AUTHORITIES ............................................ iii

INTRODUCTION AND INTEREST OF AMICUS ..... 1

ADDITIONAL REASONS TO GRANT THE

PETITION ............................................................................ 3

I.

The Federal Government Has a Long History of

Abusing Individual Rights in Ex Parte FISC

Proceedings............................................................ 3

II. Those Abuses Will Continue if FISC’s Work

Continues in Secret, and Constitutional Checks

and Balances Are Circumvented. ....................... 10

CONCLUSION.................................................................. 18

iii

TABLE OF AUTHORITIES

Cases

ACLU v. Clapper,

785 F.3d 787 (2d Cir. 2015) ............................... 4, 16

Aetna Life Ins. Co. v. Haworth,

300 U.S. 227 (1937) ................................................ 13

Carney v. Adams,

141 S. Ct. 493 (2020) .............................................. 12

FEC v. Akins,

524 U.S. 11 (1998) .................................................. 12

In re Application of the FBI for an Order Requiring

the Production of Tangible Things,

2015 WL 12696366 (FISC Nov. 24, 2015) ............... 5

Kokkonen v. Guardian Life Ins. Co of Am.,

511 U.S. 375 (1994) ................................................ 11

Opinion, [Redacted],

No. [Redacted] (FISC Apr. 26, 2017) ................... 4, 7

Opinion, [Redacted],

No. [Redacted] (FISC Nov. 18, 2020) ................ 9, 10

Opinion, [Redacted],

No. [Redacted] (FISC Nov. 6, 2015) ........................ 4

Opinion, [Redacted],

No. [Redacted] (FISC Oct. 3, 2011) ......................... 6

Order, In re Accuracy Concerns Regarding FBI

Matters Submitted to the FISC,

Docket No. Misc. 19-02 (Apr. 3, 2020) ..................... 5

Order, In Re Accuracy Concerns Regarding FBI

Matters Submitted to the FISC,

No. Misc. 19-02 (FISC Dec. 17, 2019).................. 8, 9

iv

Opinion, In Re Application Of The Federal Bureau Of

Investigation For An Order Requiring The

Production Of Tangible Things,

No. BR 14-01 (FISC Mar. 21, 2014) ........................ 4

Order, In re Production of Tangible Things From

[Redacted],

No. BR 08-13 (FISC, Mar. 2, 2009) ..................... 6, 7

Plaut v. Spendthrift Farm, Inc.,

514 U.S. 211 (1995) .......................................... 11, 12

United States v. Moalin,

973 F.3d 977 (9th Cir. 2020) .................................. 16

Statutes

50 U.S.C. § 1803(a) .................................................... 11

50 U.S.C. § 1803(b) .................................................... 11

50 U.S.C. § 1803(i) ..................................................... 13

Other Authorities

2 The Records of the Federal Convention of 1787

(Max Farrand ed., 1911) ........................................ 15

Foreign Intelligence Electronic Surveillance

Hearing on H.R. 5794, 9745, 7308, and 5632

Before the Subcomm. on Legis. of the Permanent

Select Comm. on Intelligence,

95th Cong. (1978) ................................................. 13

v

George Washington,

Undelivered First Inaugural Address: Fragments,

30 April 1789, Founders Online,

https://founders.archives.gov/documents/Washingto

n/05-02-02-0130-0002 ............................................ 15

Hon. Roslynn R. Mauskopf,

Report of the Director of the Administrative Office

of the U.S. Courts on activities of the Foreign

Intelligence Surveillance Courts for 2020 (Apr. 29,

2021),

https://www.uscourts.gov/sites/default/files/fisc_an

nual_report_2020_0.pdf ......................................... 13

Letter from James Madison to W.T. Barry (Aug. 4,

1822), in 9 The Writings of James Madison 103

(Gaillard Hunt, ed. 1910)....................................... 15

Ryan Lucas,

Ex-FBI Lawyer Sentenced To Probation For Actions

During Russia Investigation, NPR (Jan. 29, 2021),

https://www.npr.org/2021/01/29/962140325/ex-fbilawyer-sentenced-to-probation-for-actions-duringrussia-investigation ................................................. 8

The White House,

Remarks by the President on Review of Signals

Intelligence (Jan. 17, 2014),

https://obamawhitehouse.archives.gov/the-pressoffice/2014/01/17/remarks-president-reviewsignals-intelligence .................................................. 4

INTRODUCTION AND INTEREST OF AMICUS 1

The Foreign Intelligence Surveillance Court

(FISC) and the Foreign Intelligence Surveillance

Court of Review (FISCR) operate in secret. With few

exceptions, they decide issues of significant national

importance outside of the adversarial system

animating the rest of the federal judiciary. Worse still,

even their decisions are classified and rarely see

daylight. 2 They are thus unique among federal

courts—only the government appears before them,

and only the government is privy to their opinions.

This case raises a significant question: How can the

American people learn of, debate, and cast informed

votes relating to the Executive Branch’s surveillance

activities performed in their names—and, for that

matter, authorized by FISC and FISCR—if the

government refuses to disclose that information? The

petition (at 11-27) amply explains how the decision

below, in which FISCR declined even to consider a

right-of-access motion—is wrong about FISC’s and

FISCR’s jurisdiction as Article III courts and raises

significant First Amendment questions.

1 All parties were given notice more than 10 days before—and

consented to—the filing of this brief. No counsel for a party

authored it in whole or in part, nor did any person or entity, other

than Amicus and its counsel, make a monetary contribution to

fund its preparation or submission. Amicus is not publicly traded

and has no parent corporations, and no publicly traded

corporation owns 10% or more of Amicus.

2 In the 40 years of FISC’s existence, for example, only 59

opinions and 113 orders have been released to the public despite

FISC issuing thousands of orders and an untold number of

opinions. Pet. App. 119a, 119a n.23.

2

This case is of particular concern to Amicus Project

for Privacy & Surveillance Accountability (PPSA), a

nonprofit, nonpartisan organization that focuses on a

range of privacy and surveillance issues, because the

proper resolution of the question presented goes to the

heart of its mission: holding the government

accountable for its surveillance activities. Time and

again, government actors have demonstrated that,

when they can act secretly, they will behave poorly.

And the harms stemming from such behavior are

magnified when the entire proceeding approving those

actions—already a pale and non-adversarial

semblance of a genuine Article III judicial

proceeding—is classified.

As Amicus explains more fully below, the result is

a string of demonstrable abuses ranging from the

widespread warrantless surveillance of American

citizens—a presumptive infringement of the Fourth

Amendment—to

material

misstatements

in

applications seeking such surveillance. Because of the

ex parte nature of FISC and FISCR proceedings, these

abuses either go unchecked altogether or come to light

only long after the harm has occurred—and

potentially could have been addressed—or in

suspiciously partisan circumstances undermining the

trustworthiness and effectiveness of such disclosure.

Indeed, because the decision below (at Pet. App. 123a124a) allows the Executive Branch alone to be the sole

arbiter of when FISC and FISCR decisions can be

released, the public learns about abuses only if the

government itself decides for its own often-suspect

reasons to disclose them or—in rare cases—if a

government whistleblower risks criminal sanctions to

3

expose government wrongdoing that the government

itself was trying to conceal.

The American people should not have to wait for a

leaker or for the government to magnanimously (or

self-servingly) illuminate its activities. Instead, FISC

and FISCR, like all Article III courts, should be able,

and sometimes required, to publicize their decisions—

subject, of course, to proper redaction to avoid

undermining genuine national-security efforts. This

Court should grant the petition to ensure that the

American people have the information they need to

hold the Executive Branch accountable when it

violates their Fourth Amendment rights through

warrantless surveillance.

ADDITIONAL REASONS TO

GRANT THE PETITION

The petition (at 11-27) amply explains why the

decision below merits review of both the jurisdictional

point and the broader First Amendment point. Amicus

writes separately to highlight the many times the

federal government has abused the FISA process and

to explain how the decision below, which insulates the

government from scrutiny, will allow those abuses to

continue absent this Court’s review.

I. The Federal Government Has a Long History

of Abusing Individual Rights in Ex Parte

FISC Proceedings.

By all accounts, the process of ensuring national

security is an “extraordinarily difficult job—one in

which actions are second-guessed, success is

4

unreported, and failure can be catastrophic.” 3 Because

of the risks involved, FISC both “conducts its usually

ex parte proceedings in secret” and rarely issues its

decisions publicly. ACLU v. Clapper, 785 F.3d 787, 793

(2d Cir. 2015). But while the necessities of national

security may require special accommodation, they are

not a blanket pass for the government to do whatever

it

likes

without

ultimate

democratic

and

constitutional oversight.

Because of the lack of an adverse party in FISC

proceedings, the government has a “heightened duty

of candor,” 4 that is “fundamental to [FISC’s] effective

operation.” 5 As FISC itself has recognized, however,

the government has repeatedly failed to live up to this

heightened duty and has instead demonstrated an

“institutional lack” of candor, raising “very serious

Fourth Amendment” questions. 6 These abuses have

come in many forms, two of which are particularly

3 The White House, Remarks by the President on Review of

Signals

Intelligence

(Jan.

17,

2014),

https://obamawhitehouse.archives.gov/the-pressoffice/2014/01/17/remarks-president-review-signals-intelligence.

4 Opinion at 8, In Re Application Of The Federal Bureau Of

Investigation For An Order Requiring The Production Of

Tangible Things, No. BR 14-01 (FISC Mar. 21, 2014),

https://www.eff.org/document/unclassified-fisc-order-march-212014.

5 Opinion at 59, [Redacted], No. [Redacted] (FISC Nov. 6,

2015),

https://www.intelligence.gov/assets/documents/702

%20Documents/official-statement/20151106-702Mem_Opinion

_Order_for_Public_Release.pdf.

6 Opinion at 19, [Redacted], No. [Redacted] (FISC Apr. 26,

2017),

https://www.dni.gov/files/documents/icotr/51117/2016_

Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (cleaned up).

5

relevant here: (1) in many cases, the government has

filed surveillance applications containing material

misrepresentations to sidestep statutory and

constitutional limits on secret surveillance; and (2)

the government has regularly failed to follow its own

“minimization” procedures 7 when data about United

States persons is collected incidental to targeted

national-security investigations and has even used

such over-collected, non-national-security information

against U.S. persons to circumvent the baseline

constitutional protection afforded by the Fourth

Amendment.

1. The government has a long history of

misrepresenting facts in its foreign intelligence

surveillance applications to the detriment of American

citizens. Although some of the misrepresentations can

be traced to the government’s repeated failure to

follow its own internal accuracy procedures,

colloquially known as “Woods procedures,” others

cannot be written off as mere carelessness. 8

“Minimization procedures” are the procedures used to

reduce the amount of information about United States persons

collected, retained, and disseminated pursuant to a FISC order

for tangible things, such as business records. In re Application of

the FBI for an Order Requiring the Production of Tangible

Things, 2015 WL 12696366, at *2-*3 (FISC Nov. 24, 2015).

7

Order at 2-3, In re Accuracy Concerns Regarding FBI

Matters Submitted to the FISC, Docket No. Misc. 19-02 (Apr. 3,

2020),

https://www.fisc.uscourts.gov/sites/default/files/Misc%

2019%2002%20Order%20PJ%20JEB%20200403.pdf (criticizing

the FBI’s failure to comply with Woods procedures and

addressing “the need for the Court to monitor” the FBI “going

forward”).

8

6

One example is the NSA’s history of

misrepresenting the scope of its data collections to

FISC. In one 2011 opinion, Judge Bates criticized the

NSA for including a “substantial misrepresentation

regarding the scope of a major collection program” for

the “third [time] in less than three years.” 9

One such dragnet document collection was only

authorized following a “flawed depiction of how the

NSA uses [the acquired] metadata.” 10 Having

reviewed the subsequently revealed information on

how the data was actually used, the court concluded

that the NSA had “so frequently and systemically

violated” the required standard for seeking business

records that one “critical element of the overall

[business record] regime ha[d] never functioned

effectively.” 11 The government’s initial inaccurate

representations generated a “misperception * * *

[that] existed from the inception of [the] authorized

collection in May 2006” until March 2009. 12 The NSA’s

failure to “accurately report” to FISC led to “daily

violations of the minimization procedures * * *

designed to protect [redacted] call detail records

pertaining to telephone communications of U.S.

9 Opinion at 16 n.14, [Redacted], No. [Redacted] (FISC Oct. 3,

2011),

https://www.eff.org/files/filenode/fisc_opinion__unconstitutional_surveillance_0.pdf.

10 Ibid. (alteration in original; internal quotation omitted).

11 Order at 11, In re Production of Tangible Things From

[Redacted], No. BR 08-13 (FISC, Mar. 2, 2009),

https://www.dni.gov/files/documents/section/pub_March%202%2

02009%20Order%20from%20FISC.pdf.

12 Ibid.

7

persons located within the United States who are not

the subject of any FBI investigation and whose call

detail information could not otherwise have been

legally captured in bulk.” 13 Because of this

misrepresentation, the government, without a

warrant, obtained the business records of an untold

number of U.S. persons. 14

Later opinions highlight just how pervasive this

practice of over-collecting data is. In 2011, FISC held

that the government’s minimization procedures were

“statutorily and constitutionally deficient with respect

to their protections of U.S. person information.” 15

From that time forward, the NSA’s minimization

procedures “prohibited [the] use of U.S.-person

identifiers to query the results of upstream Internet”

data collected pursuant to a FISC order. 16 Despite

that prohibition, the NSA disclosed in 2016 that its

analysts “had been conducting such queries” with

“much greater frequency” than it had previously

disclosed. 17 As the government reviewed the scope of

the abuses, it became clear that the “problem was

widespread during all periods under review.” 18

13 Id. at 8-9.

14 Id. at 6, 11.

15 Opinion at 17, [Redacted], No. [Redacted] (FISC Apr. 26,

2017),

https://www.dni.gov/files/documents/icotr/51117/2016_

Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (citation omitted).

16 Id. at 19.

17 Ibid.

18 Ibid.

8

2. The Executive Branch has also, at times, flatly

lied to FISC, the most publicized example of which

happened during the 2016 election. There, the

government submitted four applications seeking to

surveil Carter Page, a U.S. citizen with ties to the

Trump Campaign.

To support the applications, an FBI lawyer altered

an email to read that Page, who had previously

worked with the CIA, had not in fact been a

government source. 19 Because of those alterations, the

Page applications included information “unsupported

or contradicted by information” in the FBI’s

possession, including “several instances” where

information “detrimental to their case for believing

that Mr. Page was acting as an agent of a foreign

power” was withheld from the National Security

Division. 20 As FISC well explained, “[w]hen FBI

personnel mislead NSD in the ways described above,

they equally mislead the FISC.” 21 FISC ultimately

held that the sheer amount of errors in the Page

applications was “antithetical to the heightened duty

of candor” and “call[ed] into question whether

19 Ryan Lucas, Ex-FBI Lawyer Sentenced To Probation For

Actions During Russia Investigation, NPR (Jan. 29, 2021),

https://www.npr.org/2021/01/29/962140325/ex-fbi-lawyersentenced-to-probation-for-actions-during-russia-investigation.

20 Order at 2-3, In Re Accuracy Concerns Regarding FBI

Matters Submitted to the FISC, No. Misc. 19-02 (FISC Dec. 17,

2019),

https://www.fisc.uscourts.gov/sites/default/files/MIsc%

2019%2002%20191217.pdf.

21 Id. at 1.

9

information contained in other FBI applications was

reliable.” 22

It

is impossible

to

know

how

many

misrepresentations like those in the Carter Page

applications have allowed the government to

circumvent the Fourth Amendment’s warrant

requirement and surveil particular U.S. citizens

without probable cause. But, if the government made

such representations with even a small percentage of

the frequency with which it misrepresented the scope

of its collections, then it has happened far too

regularly.

3. The harm from these widespread abuses

continues. Just last month, the government released

an opinion showing that many members of the FBI

had used data collected without a warrant to conduct

criminal investigations unrelated to national

security. 23 The opinion followed a recent oversight

review that unearthed 40 such inquiries of data

collected pursuant to a FISC order to assist with

criminal investigations relating to a broad array of

supposed criminal activity, large and small. 24

Purportedly, “none of the * * * information” obtained

pursuant to a FISC order was actually “used in a

criminal or civil proceeding” or, implausible as it may

seem, for “any investigative or evidentiary purpose.” 25

22 Id. at 3.

23 Opinion at 42, [Redacted], No. [Redacted] (FISC Nov. 18,

2020),

https://assets.documentcloud.org/documents/20691797/

2020_fisc-cert-opinion_10192020.pdf.

24 Ibid.

25 Id. at 43.

10

But this provides little comfort considering that it was

still “opened and reviewed” in a number of FBI field

offices around the country, in connection with ongoing

investigations. 26

These

“apparent

widespread

violations” of the querying standard caused FISC

great concern. But given that even the court lacked

information about how the FBI was supposedly

implementing new “system changes” and training its

agents, it was unable to determine whether the

current procedures “meet statutory and Fourth

Amendment requirements.” 27

In sum, whatever the facts of a particular violation

of the government’s duty, its history of violating the

heighted duty of candor in ex parte proceedings before

FISC and FISCR is a powerful reason for this Court to

grant review.

II. Those Abuses Will Continue if FISC’s Work

Continues in Secret, and Constitutional

Checks and Balances Are Circumvented.

The government’s long history of abusing the

rights of Americans in ex parte proceedings will

inevitably continue if this Court permits the decision

below to stand. As the petition notes, the government

cannot be the sole arbiter of whether any FISC

opinions are released in any form. See Pet. 26-27

(arguing that FISC “inappropriately conflated the

question of classification with the question of whether

court opinions can constitutionally be withheld from

the public”). Such unfettered authority would not only

26 Ibid.

27 Id. at 44.

11

compound the already serious separation-of-powers

concerns raised by FISC and FISCR by allowing the

government to encroach the judiciary’s inherent power

over its own proceedings, it would also ensure that the

government’s abuses will only be discovered, if at all,

long after they occur or when it suits some other

political purpose of the Administration making the

decision whether to disclose past wrongdoing.

1. By abdicating the inherent judicial power over

its own records and proceedings, the decision below

heightens the serious separation of powers and Article

III problems raised by courts that resolve matters

barely resembling a case or controversy, lack the

benefit of adversarial presentation of the facts or law,

and shield themselves from subsequent public or

judicial debate over their decisions. Such abdication

further weakens what the Founders considered the

least dangerous branch—the federal Judiciary—while

strengthening perhaps the most dangerous branch in

the post-New Deal United States, the Executive.

While Article III courts, of course, exercise limited

jurisdiction, Kokkonen v. Guardian Life Ins. Co of Am.,

511 U.S. 375, 377 (1994), they are nonetheless

entrusted with the “province and duty * * * to say

what the law is in particular cases and controversies.”

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218

(1995) (cleaned up). Though FISC and FISCR are

courts of narrower jurisdiction and procedural

safeguards than most, they nevertheless purport to

exercise the judicial power of Article III. See 50 U.S.C.

§ 1803(a) & (b) (FISC is comprised of “11 district court

judges”; FISCR is comprised of “three judges * * * from

12

the United States district courts or courts of

appeals[.]”).

As Article III courts, both FISC and FISCR possess

inherent control over their own records. See Pet. App.

96a. And to be sure, as the Petitioners point out, the

decision below allows the Executive Branch to

encroach on that authority. See Pet. 19-20.

That decision below also suggests an improper

encroachment by the Legislative Branch. Among the

Framers’ most important aims was the “sharp

necessity to separate the legislative from the judicial

power.” Plaut, 514 U.S. at 221. While FISCR has

suggested that its decision respects the separation of

powers by reading its statutory remit narrowly, if it

were true that either FISCR or FISC lack jurisdiction

to consider Petitioner’s motion, then Congress itself

usurped from an Article III court the “power to

adjudicate motions for access to its own opinions.” See

Pet. 20.

If the decision below were upheld, then, the already

pervasive separation-of-powers issues inherent in the

operation of both FISC and FISCR would only be

heightened. For example, under the governing

statute, FISC and FISCR judges purport to exercise

the federal judicial power in situations that lack a

basic requirement of a constitutional “case or

controversy”—namely, genuinely adverse parties. See

Carney v. Adams, 141 S. Ct. 493, 498 (2020) (“We have

long understood that constitutional phrase to require

that a case embody a genuine, live dispute between

adverse parties, thereby preventing the federal courts

from issuing advisory opinions.”); FEC v. Akins, 524

U.S. 11, 20 (1998) (“[C]ourts will not pass upon

13

abstract, intellectual problems, but adjudicate

concrete, living contests between adversaries.”)

(cleaned up); Aetna Life Ins. Co. v. Haworth, 300 U.S.

227, 240-241 (1937). 28

And these problems persist despite recent

congressional efforts to remedy them, such as with the

USA Freedom Act of 2015. There, Congress authorized

amici to appear before FISC and FISCR to respond to

the government’s applications, but never required

such participation. Instead, the Act provides that

FISC “shall” appoint an amicus when, “in the opinion

of the court,” a surveillance application presents a

“novel or significant interpretation of the law”—

unless, of course, FISC finds such an appointment

inappropriate. 50 U.S.C. § 1803(i)(2). Naturally, FISC

rarely makes such appointments. Only two amici, for

example, were appointed in 2020 despite hundreds of

government applications. 29 Any veneer of adversity

28 Because of the lack of a true adversarial process in FISC

proceedings, then-Ambassador Lawrence Silberman once

expressed concern that FISC would not be performing the

“constitutionally sound adjudication of cases and controversies

under Article III,” but would instead be issuing decisions

approaching the “traditionally prohibited advisory opinion.” See

Foreign Intelligence Electronic Surveillance: Hearing on H.R.

5794, 9745, 7308, and 5632 Before the Subcomm. on Legis. of the

Permanent Select Comm. on Intelligence, 95th Cong. 224 (1978)

(statement of Laurence Silberman). “[J]udges,” he continued,

“have traditionally issued search warrants ex parte,” but “they

have done so as part of a criminal investigative process which

they have traditionally supervised in many ways, and [which,]

for the most part, leads to a trial, a traditional adversary

proceeding.” Ibid.

29 Hon. Roslynn R. Mauskopf, Report of the Director of the

Administrative Office of the U.S. Courts on activities of the

14

introduced by the 2015 Act, then, has done little to

remedy the separation-of-powers concerns with FISC

and FISCR. Although FISC and FISCR purport to be

Article III courts populated by Article III judges, they

function suspiciously as an arm of the Executive,

rather than the Judicial, branch.

The decision below removes the last vestige of a

check on FISC and FISCR by precluding timely and

consistent public knowledge of the court’s decisions.

That, in turn, makes it more difficult for voters to

acquire the information needed to bring their concerns

to the attention of their elected representatives and to

demand laws requiring greater transparency from

FISC and FISCR. The Court should grant the petition

if for no other reason than to vindicate already

weakened Article III powers and responsibilities.

2. Separation-of-powers concerns do not stop at the

questionable usurpation of judicial functions but

extend also to insulating the Executive from proper

constitutional checks and balances. Simply put, it is

inconsistent with the constitutional scheme that the

Executive, the very branch that FISC has repeatedly

condemned for violating its procedures, maintains the

sole authority over when those abuses are disclosed to

the public. Although the Executive has the primary

authority to determine what underlying sensitive

factual material should remain classified, Pet. App.

6a, FISC should be able to decide what opinions and

legal conclusions to release to the public—subject only

Foreign Intelligence Surveillance Courts for 2020, at 7 (Apr. 29,

2021),

https://www.uscourts.gov/sites/default/files/fisc_annual

_report_2020_0.pdf.

15

to necessary redactions—particularly if those opinions

include consideration of potential or definitive

government wrongdoing.

Absent such checks of independent disclosure of

government wrongdoing, the public would have no

effective means of holding the government

accountable for violating their rights—seriously

undermining the very premise of our “government of

the people.” 30 As observed during the Constitutional

Convention, in “free governments the rulers are the

servants, and the people their superiors and

sovereigns.” 31 Without “the power which knowledge

gives,” as James Madison once wrote, there can be no

“popular Government.” 32 A popular government

“without popular information, or the means of

acquiring it, is but a Prologue to a Farce or a Tragedy;

or, perhaps both.” 33

The concern about information is exacerbated here

by the fact that the government generally, and a

current Administration in particular, has no incentive

to implicate itself in its own wrongdoing. Nor,

30 George Washington, Undelivered First Inaugural Address:

Fragments,

30

April

1789,

Founders

Online,

https://founders.archives.gov/documents/Washington/05-02-020130-0002 (last accessed May 6, 2021).

31 2 The Records of the Federal Convention of 1787, at 120

(Max Farrand ed., 1911) (Madison’s Notes, July 26, 1787)

(quoting Benjamin Franklin).

32 Letter from James Madison to W.T. Barry (Aug. 4, 1822),

in 9 The Writings of James Madison 103 (Gaillard Hunt, ed. 1910)

(emphasis added).

33 Ibid.

16

historically, has it done so. This is illustrated by the

small number of opinions released in FISC’s more

than forty-year history: From its inception until 2013,

only two opinions were publicly released. Pet. App.

119a. A few dozen opinions were then released in 2013

after Edward Snowden leaked information about mass

surveillance. See Pet. App. 114a-116a. 34 It should not

take a national scandal for the government’s abuses to

come to light.

But as it stands now, the overwhelming majority of

FISC or FISCR orders or opinions are never released

to the public at all. Pet. App. 119a, 119a n.23. And

even when the government does decide to disclose such

opinions, the timing itself is suspect and raises serious

political questions which would not arise if FISC and

FISCR themselves, as impartial tribunals, had the

authority to release key opinions. For example, the

public learned about the misrepresentations in the

Carter Page applications—the first of which occurred

during the Obama Administration—after President

Trump was inaugurated, and when it could be used to

undermine the Russian-collusion investigation into

his campaign and intelligence agencies often viewed

as hostile by the Trump Administration.

The current Administration likewise is not

immune to the strategic temptation to release

opinions implicating the prior Administration in

wrongdoing. As noted earlier, the Office of the Director

34 Some circuits have since concluded that the surveillance

program exposed by the leaks themselves violated the Foreign

Intelligence Surveillance Act. See United States v. Moalin, 973

F.3d 977 (9th Cir. 2020); ACLU v. Clapper, 785 F.3d 787 (2d Cir.

2015).

17

of National Intelligence last month released a

November 2020 FISC opinion revealing that the FBI

under President Trump engaged in a series of

unlawful

queries into

databases containing

information received pursuant to a FISC order. When

the public selectively learns of limited examples of

secret wrongdoing only well after the fact, and in

support of a competing Administration’s criticism of

its predecessor, constitutional checks and balances are

undermined by making such disclosure a further tool

of the Executive in power at any given moment.

For these reasons, the Court should put a proper

check on executive encroachment by holding that

FISC and FISCR have an inherent right to release

their own opinions, thus implementing the People’s

right to know of the behavior of their agents and their

ability to root out government abuse.

18

CONCLUSION

The decision below insulates the Executive Branch

from public scrutiny for its surveillance activities

despite a long history of abuses, while also depriving

Article III courts of their inherent authority over their

own opinions. In the process, it deprives the public of

the right to scrutinize those opinions—one of the few

checks the people have over the judiciary and over

otherwise secret executive machinations. To prevent

these harms and abuses, the petition should be

granted.

Respectfully submitted.

May 27, 2021

GENE C. SCHAERR

ERIK S. JAFFE

Counsel of Record

HANNAH C. SMITH

KATHRYN E. TARBERT

JOSHUA J. PRINCE

SCHAERR |JAFFE LLP

1717 K Street, NW, Suite 900

Washington, DC 20006

(202) 787-1060

ejaffe@schaerr-jaffe.com