In re Motion for Release of Court Records

• Decision Date: 11 December 2007
• Docket Number: Docket No. MISC. 07-01.
• Citation: 526 F.Supp.2d 484
• Parties: In re MOTION FOR RELEASE OF COURT RECORDS
• Court: U.S. Foreign Intelligence Surveillance Court

526 F.Supp.2d 484

In re MOTION FOR RELEASE OF COURT RECORDS

Docket No. MISC. 07-01.

United States Foreign Intelligence Surveillance Court

December 11, 2007.

MEMORANDUM OPINION¹

JOHN D. BATES, Judge.

This matter comes before the Court on the "Motion of the American Civil Liberties Union for Release of Court Records," filed on August 9, 2007 ("ACLU Motion"). In its motion, the American Civil Liberties Union (ACLU) seeks the release of what it identifies as court orders and government pleadings regarding a program of surveillance of suspected international terrorists by the National Security Agency (NSA) that had previously been conducted without court authorization. See ACLU Motion at 2 n. 2, 3-9.² The ACLU "requests that all such documents ... be made public as quickly as possible with only those redactions essential to protect information that the Court determines, after independent review, to be properly classified." Id. at 2-3.

Under a scheduling order issued on August 16, 2007, the Government filed its "Opposition to the American Civil Liberties Union's Motion for Release of Court Records" ("Gov't Opp.") on August 31, 2007, and the "Reply of the American Civil Liberties Union in Support of Motion for Release of Court Records" ("ACLU Reply") was filed on September 14, 2007. The ACLU asserts that, under the First Amendment and the common law, the public has a qualified right of access to the records in question, such that any part of the records that is not properly classified must be released. The ACLU argues that the government should be ordered to perform a declassification review of the records, and that the Court should then independently review all classification determinations. The government responds that the Court lacks jurisdiction over the motion and, on the merits, that there is no right of public access to these records. The government further contends that these records are properly classified in their entirety.

This Court concludes that it has jurisdiction over the motion, but that the ACLU has not established a right of access to these records, nor has it made a persuasive case that, as a matter of discretion, this Court should grant the relief requested. The motion will accordingly be denied.

I. The Motion Is Within the Jurisdiction of this Court.

The Foreign Intelligence Surveillance Court (FISC) was established in 1978 by the Foreign Intelligence Surveillance Act of 1978, codified as amended at 50 U.S.C. §§ 1801-1871 (FISA). Under 50 U.S.C. § 1803(a), the Chief Justice "shall publicly designate 11 district court judges who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States." "As originally enacted, FISA covered only electronic surveillance." In re Sealed Case, 310 F.3d 717, 722 n. 7 (FISC Rev. 2002). FISA has since been amended to give the FISC jurisdiction over government applications for authority to collect foreign intelligence by other means.³ Here, the requested records pertain to proceedings on applications for electronic surveillance orders under 50 U.S.C. §§ 1804-1805.

Notwithstanding the esoteric nature of its caseload, the FISC is an inferior federal court established by Congress under Article III,⁴ and like all such courts was vested with certain inherent powers upon its creation.⁵ Most pertinently here, the Supreme Court has found that "[e]very court has supervisory power over its own records and files." Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 598, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978).⁶ How the FISC exercises its supervisory power over its records, and the extent to which release of its records is either prohibited by statute (or by statutorily required security procedures) or compelled by the Constitution or the common law, go directly to the merits of the ACLU's claims, and not to the Court's jurisdiction over the ACLU's motion. Indeed, it would be quite odd if the FISC did not have jurisdiction in the first instance to adjudicate a claim of right to the court's very own records and files.⁷

Nor is this Court persuaded by the government's argument that 50 U.S.C. §§ 1806(f), 1825(g), and 1845(f)(1) preclude anyone other than an aggrieved person from bringing a motion to "discover" or "obtain" "applications or orders or other [FISA] materials," and preclude any court other than a federal district court from adjudicating a motion for such relief. See Gov't Opp. at 4. These provisions are part of an elaborate statutory scheme to ensure that when the United States or a state intends to use FISA material in a proceeding against an "aggrieved person,"⁸ the aggrieved person shall have an opportunity to contest the legality of the evidence through a suppression motion. The statutory scheme also lays out careful parameters for a district court to apply in deciding such a motion. See 50 U.S.C. § 1806(f)-(g); § 1825(g)-(h); § 1845(f)-(g). But none of these provisions is applicable here. The ACLU comes to this Court claiming a right of access as a member of the public, not as an aggrieved person who has received the statutory notification. These provisions may have some limited bearing on the merits of the ACLU's claim (see Parts II-III infra), but they do not deprive this Court of the power to entertain that motion in the first place.

Finally, the FISC rules do not preclude the filing of this motion by the ACLU. FISC Rule 7(b)(ii) states that "[e]xcept when Orders or Opinions are provided to the government when issued, no Court records or other materials may be released without prior motion to and Order by the Court."⁹ Although Rule 7(b)(ii) provides that any release of records must conform to the FISC security procedures, nothing in the text of the rule says that only the government can file a motion for release,¹⁰ Furthermore, this Court's inherent power over its records supplies the authority to consider a claim of legal right to release of those records even if Rule 7(b)(ii) were thought to be unclear on this point.

For all of these reasons, the Court concludes that it has jurisdiction to entertain the ACLU Motion. Accordingly, the Court will proceed to the merits of the ACLU's request for the release of FISC records.

II. The Operation of the FISC.

The FISC is a unique court. Its entire docket relates to the collection of foreign intelligence by the federal government. The applications submitted to it by the government are classified, as are the overwhelming majority of the FISC's orders.¹¹ Court sessions are held behind closed doors in a secure facility, and every proceeding in its history prior to this one has been ex parte, with the government the only party.¹² In the entire history of the FISC, just two opinions have been publicly released.¹³ (This opinion makes it three.) Other courts operate primarily in public, with secrecy the exception; the FISC operates primarily in secret, with public access the exception.

The operations of the FISC are governed by FISA, by Court rule, and by statutorily mandated security procedures issued by the Chief Justice of the United States, Together, they represent a comprehensive scheme for the safeguarding and handling of FISC proceedings and records. To fully address the ACLU's claims, it is helpful to examine briefly this scheme and how the FISC has historically functioned within it.

Pursuant to FISA, court orders approving government applications for electronic surveillance are entered ex parte, see 50 U.S.C. § 1805(a),¹⁴ and those applications and orders are retained subject to the FISC's special security procedures, see 50 U.S.C. § 1803(c) (described in more detail below). At the request of the applicant, an electronic surveillance order "shall direct ... that ... a specified communication or other common carrier, landlord, custodian, or other specified person ... furnish the applicant forthwith all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy." § 1805(c)(2)(B) (emphasis added). Such orders shall also direct "that such carrier, landlord, custodian, or other person maintain under security procedures approved by the Attorney General and the Director of National Intelligence, any records concerning the surveillance or the aid furnished that such person wishes to retain." § 1805(c)(2)(C) (emphasis added). If the government appeals a FISC denial of an application for electronic surveillance, the record is transmitted under seal to another special court, the Foreign Intelligence Surveillance Court of Review, which is also bound by the special security procedures and which shares the premises of the FISC. See 50 U.S.C. §§ 1803(b), 1803(c); Security Procedures Established Pursuant to Public L. No. 95-511, 92 Stat. 1783, by the Chief Justice of the United States for the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review (May 18, 1979) ("Security Procedures"), reprinted in H.R.Rep. No. 96-558, at 7-10 (1979).

The Security Procedures, which were issued by Chief Justice Burger in May 1979 pursuant to 50 U.S.C. § 1803(c), provide that the FISC's chambers and facilities must, meet certain secure design specifications (¶ 2); that the Court appoint a security officer (¶ 5); and that the Clerk of Court, in consultation with the security officer, ensure that "all court records" are marked with appropriate security classifications in accordance with applicable Executive Orders and court procedures (¶ 6), Paragraph 7 of the Security Procedures provides:

Court Proceedings. The court shall ensure that all court records, including notes, draft opinions and related materials, are maintained according to applicable security standards established in [a specified Director of Central Intelligence directive] or successor directives as concurred in by the Attorney General. Records of ...