In Rare En Banc Session, Surveillance Court to Reconsider Whether ACLU Can Seek Release of Documents

By Michael Linhorst
Tuesday, March 28, 2017, 9:56 AM

All 11 judges on the Foreign Intelligence Surveillance Court will rehear an ACLU claim that it has standing to assert a First Amendment right to see FISC decisions upholding the government’s bulk data collection program.

The hearing appears to be just the second time in the FISC’s history that it has publicly stated that it will meet en banc (it is unclear whether it has held secret en banc sessions).

In January, FISC Judge Rosemary Collyer ruled that the ACLU and other civil rights groups did not have a First Amendment right to read the full court decisions that support the legality of the NSA’s bulk metadata collection (see our previous coverage of the decision here and explanation of the First Amendment “right of access” argument here). Since it had no right to the material, the ACLU did not suffer an injury by virtue of being unable to see the records. And with no injury, the court concluded, it had no standing to bring a motion seeking release of the documents.

The full FISC will rehear only the standing issue, not the underlying First Amendment question. It has directed the parties to file briefs addressing whether the ACLU established standing “notwithstanding that a First Amendment qualified right of access does not apply to the judicial opinions they seek.”

The court decided on its own to rehear the case—neither party requested an en banc review. The order was signed by Judge Collyer, who wrote the original decision.

Last month, the ACLU asked that Judge Collyer’s decision be reconsidered and joined with a motion the ACLU filed in October, which makes the same First Amendment right-of-access argument in seeking major FISC opinions and orders dating back to the September 11 attacks. The ACLU requested that, in the alternative, the court withdraw its January decision until the October motion was resolved. The court has not directly addressed either of those requests.

The only other time the court has publicly met en banc, in 2002, it analyzed whether Justice Department minimization procedures satisfied statutory requirements. Back then, it was unclear whether the FISC was even authorized to meet en banc. Congress clarified in the FISA Amendments Act of 2008 that the court could hold a hearing or rehearing en banc if a majority of the 11 judges determined that such a hearing was “necessary to secure or maintain uniformity of the court’s decisions” or “the proceeding involves a question of exceptional importance.”

The FISC’s order last week stated that an en banc rehearing was needed to maintain uniformity of the court’s decisions.

The January decision, holding that the ACLU did not have a First Amendment right of access to the documents and therefore did not have standing to motion for the documents’ release, contradicted an earlier FISC decision. In 2007, after the ACLU made a similar First Amendment argument, the FISC held it had jurisdiction to hear the ACLU’s motion—although it went on to conclude that no First Amendment right applied.

The court’s order gives the ACLU and the government until April 17 to file briefs and May 1 to file replies. It adds that it “does not anticipate that oral arguments will be entertained.”