A New Consensus Around Transparency and National Security Surveillance

This piece first appeared in Just Security.

The opinions of the Foreign Intelligence Surveillance Court (FISC) sometimes have far-reaching implications for Americans’ privacy and free speech rights. Until very recently, though, the notion that the First Amendment should be understood to protect a qualified right of access to the FISC’s opinions was popular only among a small coterie of civil libertarians.

But the world is different now. Among the intelligence community elite, there seems to be a new recognition that excessive secrecy can be costly—and not just to democracy but to national security. In part because of the intelligence community’s experience since the Snowden disclosures, there’s also a new confidence in the ability of the government, and of the courts, to provide more transparency about the government’s activities without compromising sources and methods.

When we and our colleagues at the ACLU, the Knight Institute, and Yale’s media clinic argued in a cert petition last month that the FISC was wrong to reject a First Amendment right of access, we were joined by Ted Olson, who served as Solicitor General to President George W. Bush and defended the Patriot Act before the Foreign Intelligence Surveillance Court of Review (FISCR). Equally telling, among the many amici filing briefs in support of the petition today are other high-ranking national security figures, including James Clapper, the former director of national intelligence (DNI); John Brennan, the former CIA director; and Bob Litt, the former general counsel to the DNI. Anyone who followed the Snowden disclosures, and the government’s response to them, knows these names well.

The former officials’ brief is worth reading. It argues, as our cert petition does, that the FISC and FISCR were wrong to conclude that they lacked jurisdiction to consider right-of-access motions, and that the FISC was wrong to conclude, on the merits, that no such right of access is protected by the First Amendment. On this latter issue, the brief says:

[I]t is difficult to overstate the “significant positive role” that a qualified presumption of access would play in the functioning of the FISC and among the Intelligence Community and the public. Particularly in a context like this one—where serious national security concerns abound and protecting access to intelligence sources, methods, and targets is paramount—the trust and confidence of the public and the assurance of strong and credible oversight are critical. That trust is maintained by a presumption of access to the important judicial opinions of the courts responsible for reviewing and adjudicating the government’s compliance with the statutory and constitutional frameworks that govern intelligence collection.

The former officials also argue that excessive secrecy creates the circumstances in which unauthorized leaks become more likely and more dangerous. They write:

[T]he FISC appears to start from the premise that recognizing a qualified right of access will undermine secrecy in ways that necessarily harm the Nation’s foreign intelligence efforts. That reflects a short-sighted, unrealistic view of the world. Too much secrecy itself can set back intelligence operations. . . . And excessive secrecy risks the type of unauthorized disclosures that have framed public debate about government surveillance efforts for much of the past decade. The public demands assurances that surveillance activities done in its name are subject to proper oversight and buttressed by sound applications of the law; if there is no legal means for obtaining such assurances, history has shown that unauthorized disclosures may fill the information vacuum.

Perhaps these arguments will strike some readers as obvious or even banal. But these arguments are dramatically different from the ones that routinely appeared in government briefs just a few years ago—and from the ones that the Bush, Obama, and Trump administrations have made before the FISC and FISCR. It is a significant thing that people like Clapper, Brennan, and Litt are not just endorsing these arguments but advancing them in front of the Supreme Court. (Notably, another signatory to the same brief is Don Verrilli, who served as Solicitor General under President Barack Obama and in that capacity represented the government in Amnesty v. Clapper. The Supreme Court’s decision in that case, which had the effect of insulating controversial surveillance practices from review on the merits, was one of the things that Edward Snowden cited in explaining his decision to share classified documents with the Guardian and the Washington Post.)

Other amicus briefs being filed today further underscore the breadth of the new consensus about transparency and national security surveillance. One brief comes from the Brennan Center (sometimes associated with the civil libertarian left) and Americans for Prosperity Foundation (usually associated with the libertarian right). Another, by the Reporters Committee for Freedom of the Press, has been signed by nearly three dozen major news organizations. And a brief by Microsoft explains why public access to the FISC’s opinions is vital to the company’s millions of users and to its global business.

Another especially notable brief comes from former magistrate judges, including James Orenstein (Eastern District of New York), and draws from those judges’ experience addressing novel and consequential surveillance issues.

Collectively, the amicus briefs being filed today are a testament to a dramatically changed political landscape. Civil libertarian arguments that were dismissed a decade ago are now broadly accepted, even at the highest levels of the intelligence community. The consensus is limited, of course, and it bears emphasis that people who agree that a qualified First Amendment right of access attaches to judicial opinions may disagree fundamentally about how the courts should give effect to that right when deciding whether and how to disclose any specific opinion. Still, what a difference a decade makes.