Brief To FISA Court Says The Presumption Of Openness Should Apply There, Too

from the it's-a-court,-not-a-wing-of-the-NSA dept

The court system belongs to the people. That's what a "presumption of openness" means. It's a public system, accessed by the public or by representatives of the public. With rare exception, documents filed with the court system should be made available for viewing by the public.

The FISA court, which oversees a multitude of surveillance programs and national security investigations is a closed book. Until very recently, it operated in total darkness, much like the agencies seeking its approval for surveillance. The Snowden leaks changed that, moving it very slightly closer to a presumption of openness.

The Director of National Intelligence -- nodding towards transparency in a mostly self-serving way -- has begun to declassify orders and rulings from the FISC. But a majority of FISC documents released by the ODNI haven't come from this hesitant step towards transparency. They've been forced out the government's hands by numerous FOIA lawsuits.

Access to court documents shouldn't have to be litigated, even in the FISA court. That's the argument being made by Georgetown professor Laura K. Donohue in her FISA court brief [PDF]. The long, very interesting brief covers a number of issues and government arguments, but it all boils down to public access as a presumption, rather than a grudging concession after a courtroom loss in a FOIA case.

Her brief note the FISA court controls the documents submitted to it and the orders/opinions it issues. When it decides its subservient to surveillance agencies and their national security assertions, the system of checks and balances is thrown out of whack. That's what's happened over the 40 years the court has been in operation. Government agencies and a number of administrations have decided it does not have the discretion to handle the release of court documents.

This is obviously wrong. Donohue's brief sets the stage with a dismantling of the government's opacity arguments -- all designed to override the court's inherent authority to control the release of court documents. [Paragraph breaks added for readability.]

FISC has inherent supervisory authority over its own records and therefore exercises non-statutory jurisdiction over all common law and First Amendment public rights of access. Each of the... arguments offered by the response brief to the contrary fails.

First, the jurisprudence establishes that no statutory cause of action is required for the court to exercise its inherent powers. The court with original jurisdiction over the case oversees all contemporaneous and future motions for access to records. None of the myriad inherent powers cases at issue rely on a separate, statutory cause of action. The FISC would have to rule against the Supreme Court, every circuit, and four prior decisions of the FISC, to find for the government…

There's plenty of precedent to be had but the government wants to ignore it. Instead, it would rather funnel access through the FOIA process so it can retain complete control over documents filed in court, claiming the court's power for itself. But the government also wants it both ways and will "allow" the FISC to control court documents if it seems like a better route for an FOIA denial.

FOIA cannot serve as a substitute for judicial action as it does not (because it cannot) create a cause of action for records held by the judiciary. That statute focuses exclusively on agency records. Regardless of whether the executive branch happens to have judicial records in its files, as the Supreme Court has held, courts retain jurisdiction over their own documents.

The government response brief is further in tension with two arguments that the government has elsewhere raised. In both district court and at the FISC, it has argued that even under FOIA, FISC opinions are still subject to the FISC's control, suggesting that the court does, in fact still retain jurisdiction. Perhaps more concerning, the government has gone into district court and argued that because the FISC is a specialized court, the district court should not exercise jurisdiction over FISC records-an argument at odds with the argument it advances in its representations to this court, where it suggests that (non-specialized) district courts have jurisdiction over FISC documents.

The presumption of openness and disclosure should include the FISA court. The American public has a right to know what the government's doing with its money and its tacit approval. If there are national security concerns, they must be explicitly detailed rather than broad-brushed across a stack of documents. The FISC should ensure the government doesn't cut corners on its redaction paperwork.

And that's the very reason redacting exists. The government could allow the release of documents as soon as they're redacted (after making their case in court) to protect national security interests. Opening up the FISA court doesn't mean exposing a long list of surveillance means and methods. It simply means treating the FISA court like any other federal court where documents and dockets can be viewed by the public to better educate themselves on legal processes, issues, and government activities. Considering the NSA's long history of abuses, the more eyes on the process the better, especially when its oversight has devolved into a partisan point-scoring exercise.

The never-before-seen release of FISA warrant affidavits should be the tip of the iceberg. There's a lot the court oversees and it's doing it with almost no assistance from the outside. This leaves it at the mercy of the agencies seeking its approval. That's not the way the system should work.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Simon Templar, 10 Aug 2018 @ 7:47pm

    It'd be enough if FBI didn't take FAKE UNVERIFED reports.

    As did with Trump. There's not a shred of substance in the "pee dossier", it was paid for by Clinton, fabricated by Steele, then inserted into media outlet so that the FBI could claim, "oh, must be something to this!" That's how the Deep State / Mainstream Media machine works. Fake all through.

    And Techdirt not only jumped on that enthusiastically with pieces for several months, but fanboys STILL appear to believe the "must be", even though Mueller hasn't turned up even a hint of connection to campaign in year and half.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Aug 2018 @ 8:06pm

      Re: It'd be enough if FBI didn't take FAKE UNVERIFED reports.

      It's funny how you're literally just lying.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 10 Aug 2018 @ 9:21pm

      Mueller hasn't turned up even a hint of connection to campaign in year and half

      You, uh…you know something for an absolute guaranteed fact that the rest of us do not?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Aug 2018 @ 12:07am

      Trumps still not gonna kiss you.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Aug 2018 @ 1:04am

      Re: It'd be enough if FBI didn't take FAKE UNVERIFED reports.

      I wasn't aware that Trump had gained access to a time machine to retroactively never hire Paul Manafort and Robert Gates. He shouldn't have cheaped out and gotten the one that left everyone's memory intact though.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Aug 2018 @ 7:34am

      Re: It'd be enough if FBI didn't take FAKE UNVERIFED reports.

      You forgot the /s

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Aug 2018 @ 7:58pm

    This office too must comply with the constitution

    If any part of the government starts operating outside of the confines of the law, it no longer is a valid government.

    reply to this | link to this | view in chronology ]

    • identicon
      Christenson, 10 Aug 2018 @ 8:36pm

      Re: This office too must comply with the constitution

      And when the FBI sends its own to jail for stealing in the Silk Road case?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Aug 2018 @ 7:35am

      Re: This office too must comply with the constitution

      If?

      lol

      reply to this | link to this | view in chronology ]

    • identicon
      vesper, 11 Aug 2018 @ 7:55am

      Re: Spank the Feds ?

      ^^ ".... outside of the confines of the law, it no longer is a valid government."


      ()

      ... and just what do we do then ??

      Our Feds have been operating well outside fundamental "law" (Constitution) for a century+. It's so bad now that no one can objectively state what U.S. law is.
      American "law" is whatever government politicians and bureaucrats say it on any given day. Rulers make the Rules.

      "debating" the validity of FISA/FISC is absurd --- they are absolutely and manifestly unconstitutional. Secret courts can not exist at all under the U.S. Constitution, nor in a free society. There is no American "Law" --- only government interpretations and edicts.
      99% of Americans have no clue what a genuine rule-of-law system should look like.

      reply to this | link to this | view in chronology ]

  • icon
    roebling (profile), 11 Aug 2018 @ 6:31am

    Clear as mud

    Paragraph 5 is nearly unreadable

    reply to this | link to this | view in chronology ]

  • icon
    sumgai (profile), 12 Aug 2018 @ 9:10am

    The subtitle needs a slight correction:

    From the it's-a-court,-not-a-wholly-owned-subsidiary-of-the-NSA dept

    T,FTFY

    But I was wondering... what does FISC stand for again? The best I could come up with was Fookin' Inept Secrets Coverup.

    sumgai

    reply to this | link to this | view in chronology ]


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