On March 26, 2018, the Foreign Intelligence Surveillance Court of Review (FISCR) issued an opinion holding that MFIA and the ACLU have standing to pursue their First Amendment right of access motion for judicial opinions of the Foreign Intelligence Surveillance Court (FISC). The development was the latest in a years-long effort to advance the public's First Amendment right of access to the FISC's secret judicial opinions authorizing some of the government's most controversial mass surveillance activities. MFIA and the ACLU originally filed the case in 2013 after Edward Snowden revealed that the FISC had authorized widespread surveillance of Americans.
Yet the case implicates more than one kind of access. It's crucial not only for establishing a First Amendment right of access to the FISC's judicial opinions, but also for further defining the parameters of litigants' access to federal courts. Specifically, a January 2017 decision from a single FISC judge had dismissed the challenge for lack of standing. Sitting en banc for the first time in its history, the FISC reversed that determination, holding that MFIA and the ACLU could challenge the secrecy of the court's judicial opinions. The FISC then certified the question to the FISCR, which issued a monumental ruling establishing once and for all that MFIA and ACLU may pursue their claim.
Had the FISCR issued a decision going the other way, it could have had devastating consequences. While standing may seem like a dry technical issue, it has enormous ramifications for access to courts-particularly in the national security context. Indeed, from this case in FISCR to cases challenging surveillance programs across the other federal courts, like Clapper v. Amnesty Int'l USA and United Presbyterian Church in the U.S.A. v. Reagan, doubts over standing have hampered litigants in a variety of national security-related suits.
To understand why, it merits pausing to consider the doctrinal origins and elements of standing. Though the current approach to standing jurisprudence itself only originated over the last several decades, the requirement stems from the Constitution, which extends Article III jurisdiction only to "cases and controversies." What makes a case or controversy is, unfortunately, undefined. In lieu of a clear constitutional mandate, courts have developed their own theory of standing to assess whether a case or controversy exists.
The Supreme Court stated the requirements for standing most clearly in Lujan v. Defenders of Wildlife. According to Lujan, a moving party must demonstrate (1) that it has suffered an injury-in-fact to a legally protected interest; (2) that the injury is caused by or fairly traceable to the challenged actions of the defendant; and (3) that it is likely that the injury will be redressed by a favorable decision. While these prongs appear fairly simple at first glance, their application has generated much confusion and controversy.
Suits involving national security often get dismissed on the first factor. The Lujan Court specified that an injury-in-fact must be "concrete and particularized," and "actual or imminent," elements that are difficult to show given the secrecy of national security. For example, in United Presbyterian Church, the D.C. Circuit upheld an order to dismiss a claim challenging surveillance under E.O. 12,333 because the plaintiffs could not allege facts sufficient to support the notion that they had been subject to surveillance. Similarly, in Clapper, the Court held that plaintiffs asserted injuries too "speculative" to challenge the constitutionality of FISA's Section 702. Though plaintiffs were human rights lawyers, journalists, and others who worked closely with likely targets of surveillance under Section 702, and hence it was probable that plaintiffs' communications had been acquired, they could not show this allegation with enough definitiveness. In both cases, inability to attain standing stemmed from the secrecy implicit in government surveillance. More specifically, since the nature of national security often classifies key details, parties lack enough information to assert a sufficient injury.
The suit before the FISCR shed light on difficulty with a different aspect of the injury-in-fact requirement: that there exist a legally protected interest. The dissenting judges in the FISC would have held that movants don't have standing because there is no First Amendment right to classified opinions (and hence, that no legally protected interest has been injured). FISCR rightly rejected that approach, ensuring that novel and previously rejected claims are not swept out of court at the standing inquiry.
Of course, much hangs in the balance on the merits of the case as well. Should MFIA and the ACLU also win on their right of access claim, disclosing judicial opinions may help future litigants establish standing by allowing them to demonstrate injury-in-fact, if only marginally. Even though we still might not know the particulars of contemporaneous surveillance when that information is properly classified, better understanding the FISC's reasoning in granting or denying surveillance certifications can potentially help other litigants at least somewhat bridge the information gap and develop better legal theories. This goes some way toward resolving the problem identified above-that the secrecy of the national security context often makes it very difficult to establish standing.