Does the First Amendment Require Disclosure of a Secret Court’s Major Rulings?

Following a statement by the Justice Department to the Supreme Court that the public had no right of access under the First Amendment to secret decisions issued by a federal court, the justices are set to consider whether to hear a case which was brought by the American Civil Liberties Union and concerns decisions issued by the Foreign Intelligence Surveillance Court, reports the New York Times. The surveillance court, created by the Foreign Intelligence Surveillance Act of 1978, or FISA, rules on government surveillance requests and programs in the context of national security. It generally hears from only one side — the government — and much its work is of necessity secret.

And while Congress passed a new law, the USA Freedom Act of 2015, requiring executive branch officials to make public, “to the greatest extent practicable,” decisions from the intelligence court that included significant legal determinations, critics argue that under separation-of-powers principles courts rather than the executive branch should decide whether judicial opinions ought to be made public. In addition, they point out that the 2015 law, at least according to the executive branch, does not apply to decisions issued before its enactment. The ACLU 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. A specialized appeals court ruled in 2020 that the FISA court lacked the power even to consider whether there is a right of access to its decisions under the First Amendment.