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The New England First Amendment Coalition recently joined a group of press advocates in support of an effort to get the U.S. Supreme Court to take up a long-running case concerning public access to court documents at the Foreign Intelligence Surveillance Court, or FISC, a secret body that authorizes surveillance activities under the Foreign Intelligence Surveillance Act of 1978.
“[B]oth logic and experience support a qualified First Amendment right of access to opinions and orders of the FISC, including those containing novel or significant interpretations of law,” according to a May 27 amicus brief filed on behalf of the groups by the Reporters Committee for Freedom of the Press.
Following passage of the 2015 USA Freedom Act, the director of National Intelligence must conduct a declassification review of FISC opinions containing significant interpretations of law, but earlier decisions are not made public.
If secrecy prevails, amici wrote, it would “prevent the press from informing the public about important developments in national security practices that implicate the civil liberties and privacy of millions of individuals in the United States.”
In the brief, NEFAC and fellow amici argued that the U.S. Supreme Court should agree to hear the case — ACLU v. United States — to recognize that there is a qualified First Amendment right of access to FISC opinions and orders. More specifically, they explained that:
• Public oversight is an important component of the FISC’s ability to serve as a meaningful check on executive overreach when conducting foreign intelligence surveillance.
• Historical events leading to the passage of FISA demonstrate that logic supports a right of access to FISC opinions and orders.
• Courts considering the legality and constitutionality of foreign intelligence surveillance consistently recognize a qualified right of access, demonstrating that experience supports a right of access to FISC opinions and orders.
• The denial of a forum in which to assert First Amendment rights raises significant constitutional concerns.
NEFAC is the region’s leading advocate for the First Amendment and the public’s right to know about government. Learn more about how NEFAC is protecting the free press and open government in New England.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.
Major Supporters of NEFAC include Hearst Connecticut Media Group, Paul and Ann Sagan, The Boston Globe, WBUR, Boston University and the Robertson Foundation.