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Justices won’t wade into fight for access to surveillance court rulings

Justices Neil Gorsuch and Sonia Sotomayor made for an unlikely pair in criticizing their colleagues for not taking up the ACLU’s effort to make secretive court rulings public.

WASHINGTON (CN) — Two justices from opposite ends of the political spectrum joined forces Monday to criticize the Supreme Court's rejection of an appeal from civil rights groups fighting for access to rulings from a secretive surveillance court.

For almost 50 years, the Foreign Intelligence Surveillance Court has overseen any number of international and domestic surveillance issues, but the amount and scope of its work remains statutorily shrouded in mystery.

In 2016, the American Civil Liberties Union sought to pry open that work by asking to see the court's opinions, but that attempt was stymied Monday when the Supreme Court denied the group's petition to hear its case after both the surveillance court, known as the FISC, and its appeals branch rejected the request to release opinions.

While a majority of the high court bench voted against hearing the case, conservative Justice Neil Gorsuch, joined by liberal Justice Sonia Sotomayor, dissented.

“This case presents questions about the right of public access to Article III judicial proceedings of grave national importance,” Gorsuch wrote. “Maybe even more fundamentally, this case involves a governmental challenge to the power of this court to review the work of Article III judges in a subordinate court.” 

“If these matters are not worthy of our time, what is?” the Donald Trump-appointed justice added.

Gorsuch called out the government's "extraordinary claim" that not only does the public lack the right to see rulings in FISC cases, but not even the Supreme Court can review the surveillance court's decisions.

"On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts,” he wrote. “Today the court declines to take up this matter. I would hear it.”

The ACLU and other groups, including Yale Law School's Media Freedom and Information Access Clinic, first sought information on the highly secretive court back in 2013. 

In their first filing with the FISC, they noted former President Barack Obama, members of Congress and some members of America's national security apparatus all publicly discussed issues that stem from the court. This public discourse from the Oval Office on down should have opened the court’s doors to the public, according to the groups.

Concealment of the court's reported work – from approving the bulk tracking of Americans’ communications to allowing federal pressure on private companies to create backdoors on citizens' devices and software – must end in order to protect the public's privacy in the face of government surveillance, the groups argued.

“There is no obstacle— either procedural or practical—to releasing FISC opinions that have been carefully redacted to protect specific intelligence interests, so that the public knows the meaning of its laws,” wrote Alex Abdo, ACLU attorney and litigation director for the Knight First Amendment Institute at Columbia University, in the rejected 2013 filing.

In its response to the ACLU's request for a Supreme Court hearing, the government downplayed the invasiveness of the FISC’s work. 

Instead, acting Solicitor General Brian Fletcher argued the court serves the legitimate purpose of providing a “secure framework” for the president's administration to conduct “legitimate electronic surveillance for foreign intelligence purposes.” 

“The executive branch is committed to providing the public as much transparency about the FISC’s work as is consistent with the nation’s security,” Fletcher wrote, before pointing to the Freedom of Information Act as an alternative tool to gain access to the court’s work. 

The ACLU shared Gorsuch and Sotomayor's disappointment over Monday's denial.

“Our privacy rights rise or fall with the court’s decisions, which increasingly apply outdated laws to the new technologies we rely on every day," said Patrick Toomey, senior staff attorney at the ACLU’s National Security Project. "These opinions are the law and they should be public, not kept hidden from Americans whose rights hang in the balance.”

The Justice Department did not immediately respond to a request for comment.

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