(Bloomberg) -- The U.S. Supreme Court turned away an American Civil Liberties Union appeal that said the public has a constitutional right to see legally significant opinions from a secretive court that approves government surveillance of foreign intelligence targets.
The justices left intact rulings that said the Foreign Intelligence Surveillance Court lacks power even to consider contentions that the First Amendment guarantees public access to its opinions. Justices Neil Gorsuch and Sonia Sotomayor said they would have heard the case.
The ACLU told the justices that public access is critical to the legitimacy of the FISC, a court created under the 1978 Foreign Intelligence Surveillance Act. In the years since the Sept. 11, 2001, attacks on the U.S., the FISC has authorized sweeping surveillance programs that have included the collection of international communications made by Americans inside the U.S.
“The decisions of the FISC affect the privacy, expressive, and associational rights of every American,” the ACLU argued. The group was appealing a ruling by the Foreign Intelligence Surveillance Court of Review, which oversees the FISC.
The Biden administration urged rejection of the appeal, saying federal law doesn't give the Supreme Court jurisdiction to entertain the ACLU's arguments.
The administration said outside groups have other avenues for getting information about the FISC's work, including the Freedom of Information Act. Acting Solicitor General Brian Fletcher said a FOIA case filed by the Electronic Frontier Foundation led to the release of more than 70 orders, decisions and opinions issued by the FISC.
“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 said in court papers.
The ACLU says the FOIA process gives government agencies broad discretion to withhold information and doesn't let groups assert a constitutional right of access to information.
The case is ACLU v. U.S., 20-1499.
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