SECRET COURT RULES IT LACKS JURISDICTION TO REVEAL ITS OWN SECRET OPINIONS | WHAT REALLY HAPPENED

SECRET COURT RULES IT LACKS JURISDICTION TO REVEAL ITS OWN SECRET OPINIONS

In April, the Foreign Intelligence Surveillance Court of Review (FISCR) published an opinion that set the civil liberties community on edge. It addressed whether it had jurisdiction to resolve several First Amendment claims seeking access to opinions of the Foreign Intelligence Surveillance Court (FISC).

FISCR acknowledged that civil liberties groups that brought suit had satisfied two of the three jurisdictional requirements. First, a lack of access to these opinions was unquestionably an injury that could be redressed by a court, making the case actionable and live. Second, the FISC withheld those opinions based on federal law. But FISCR found that the third needed category—that the issue must be authorized by a “jurisdictional statute”—was not satisfied.

Last week, FISC acted on this standard, rejecting requests for opinions regarding bulk data collection. In three cases brought by civil liberties organizations seeking access to unreleased opinions, FISC dismissed each motion for a lack of jurisdiction, notwithstanding the strength of the First Amendment claims of access.

“Orwellian” is a word that gets a lot of use these days, but when a court needs special permission to decide questions about its own internal procedures, that adjective certainly comes to mind. What’s next, a requirement for a specific grant of permission to decide what to order for lunch?

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