Analysis & Comment

Opinion | The Spy Court Is Too Secretive

One of the most powerful courts in the country, the Foreign Intelligence Surveillance Court, is cloaked in unnecessary secrecy. It authorizes panoramic surveillance programs that can have profound implications for the rights of millions of Americans, but many of its significant decisions have been withheld from the public.

The three of us have different views about how expansive the government’s surveillance powers should be. One of us, as solicitor general of the United States, defended the broad authority granted to federal officials to track and intercept communications for law enforcement and intelligence-gathering purposes under the U.S.A. Patriot Act; the other two have been among that law’s most active critics.

But we agree about one crucial point: The needless secrecy surrounding the surveillance court is bad for the court, the intelligence agencies and the public — and it is also unconstitutional.

We said this to the Supreme Court last month in a petition filed on behalf of the American Civil Liberties Union, arguing that the public should have access to the surveillance court’s decisions. And in briefs filed with the court last week, many others — including former intelligence officials, civil society groups, and a major technology company — reinforced the same point.

Congress created the surveillance court in 1978 after a congressional committee found that the intelligence agencies had abused their surveillance powers in ways that violated Americans’ rights and jeopardized our democracy. The court was charged with overseeing certain kinds of surveillance conducted for national security purposes. In its original incarnation, its role was narrow. It authorized a few hundred wiretaps a year.

The Supreme Court: Upcoming Cases

    • A Big Month. June is peak season for Supreme Court decisions. It is the final month of the court’s annual term, and the justices tend to save their biggest decisions for the term’s end.
    • 4 Big Cases. The court is set to rule on the fate of Obamacare, as well as a case that could determine scores of laws addressing election rules in the coming years. It is also taking on a case involving religion and gay rights and one on whether students may be disciplined for what they say on social media (here’s an audio report on that subject; and here’s where public opinion stands on several of the big cases).
    • What to Watch For. The approaches that Amy Coney Barrett, the newest justice, and Brett Kavanaugh, the second-newest, take. They will be crucial because the three liberal justices now need at least two of the six conservatives to form a majority. Before the death of Ruth Bader Ginsburg, the liberals needed only one conservative.
    • Looking Ahead. Next year’s term, which will start in the fall, will have cases on abortion, guns and perhaps affirmative action, and could end up being the most significant term so far under Chief Justice John Roberts.

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