The Common Law and First Amendment Qualified Right of Public Access to Foreign Intelligence Law
(2023). Georgetown Law Faculty Publications and Other Works. 2492.
53 Pages Posted: 23 Mar 2023 Last revised: 4 Aug 2023
Date Written: March 14, 2023
For millennia, public access to the law has been the hallmark of rule of law. To be legally and morally binding, rules must be promulgated. Citizens’ knowledge of the law, in turn, serves as the lynchpin for democratic governance. In common law countries, it is more than just the statutory provisions and their execution that matters: how courts rule, and the reasoning behind their determination, proves central. Accordingly, in the United States, both common law and the right to petition incorporated in the First Amendment have long enshrined a presumed right of public right of access to Article III opinions and records.
Like their geographic sistren, the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR), firmly situated within Article III, routinely rule on critical first, fourth, and fifth amendment questions, engage in complex statutory analysis, and adjudicate matters involving government malfeasance—all matters at the heart of the rule of law. Nevertheless, the FISCR recently determined that the FISC/R lack any jurisdiction over First Amendment right of access cases, sidestepping both common law and the inherent powers of the judiciary. Even as the Supreme Court denied the subsequent petition for certiorari, Justice Neil Gorsuch, joined in his dissent by Justice Sonia Sotomayor, raised significant concerns about the FISCR’s ruling, as well as the government’s position that the Supreme Court lacks any jurisdiction over the FISCR’s determination.
The Common Law and First Amendment Right of Public Access to Foreign Intelligence Law tackles the preeminent argument put forward in support of the FISCR determination— that because of the specialized nature of the FISC/R, they are somehow immunized from constitutional challenge—and argues that both a common law and qualified First Amendment right of access applies to FISC/R decisions.
The Article begins by providing the historical evolution of the common law right of access, as well as the First Amendment presumed right of access to judicial records and setting forth the tests applied in each realm. It elucidates the reasons undergirding the right of access and its consistent application to judicial records. The Article next turns to a handful of First Amendment right of access cases to come to the FISC and clarifies complex interplay that resulted in the petition to the Supreme Court. It then tackles the most typical cluster of counter-arguments offered in favor of denying any common law or First Amendment public right of access, starting with the government’s remarkable assertion that the proper way to obtain Article III decisions is by going through the Freedom of Information Act, which includes seven exemptions in matters of national security and is designed to give the public access to executive branch, not judicial, records. The Article then counters the argument that the sensitive nature of matters before the FISC/R and their institutional design foreclose public access, noting that they are far from unique in addressing matters of national security and that they now operate in a manner largely consistent with geographic courts. The Article concludes that while some matters may, in the future, need to be withheld from public view, insofar as matters of law, and the reasoning leading to the court’s conclusion, establish what the law is, both a common law and First Amendment right of access apply.
Keywords: Foreign Intelligence Surveillance Court, Foreign Intelligence Surveillance Court of Review, First Amendment Right of Public Access, Foreign Intelligence Law, National Security Law, Supreme Court
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