Opinion and Order

OCR transcription for search; preserved printed pages are authoritative

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# UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COUReAnn Flynn Hall, Clerk of Court WASHINGTON, D.C.

IN RE OPINIONS AND ORDERS OF THIS
COURT CONTAINING NOVEL OR
SIGNIFICANT INTERPRETATIONS OF LAW

Docket No. Misc. 16-01

## OPINION AND ORDER

Pending before the Court is a motion for the release of court records that the American
Civil Liberties Union, the ACLU of the Nation's Capital, and the Media Freedom and
Information Access Clinic filed on October 19, 2016. The motion invokes Rule 62 of the United
States Foreign Intelligence Surveillance Court Rules of Procedure and the qualified First
Amendment right of access to compel the Court to disclose classified opinions and orders that
contain novel or significant interpretations of law and were issued between September 11, 2001,
and June 2, 2015. See ACLU's Mot. at 1, https://www.fisc.uscourts.gov/sites/default/files/
Misc%2016%2001%20Motion%20of%20the%20ACLU%20for%20the%20Release%20of%
20Court%20Records%20161019.pdf.

In 2013, these same movants filed a motion arguing that both FISC Rule 62 and the
qualified First Amendment right of access authorized this Court to exercise jurisdiction over
their request for the disclosure of classified judicial opinions addressing the legal basis for bulk
collection. See Mot. of the ACLU, the ACLU of the Nation's Capital, & MFIAC for the Release
of Ct. Rs., Misc. No. 13-08 (Foreign Intel. Surv. Ct. 2013), https://www.fisc.uscourts.gov/sites/
default/files/Misc%2013-08%20Motion-2.pdf. Four months ago, the United States Foreign
Intelligence Surveillance Court of Review dismissed that motion in In re Opinions and Orders

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by the FISC Addressing Bulk Collection of Data Under the Foreign Intelligence Surveillance
Act, 957 F.3d 1344 (Foreign Intel. Surv. Ct. of Review Apr. 24, 2020) (per curiam). The FISCR
held that it lacked jurisdiction over the petition seeking appellate review of then-Presiding Judge
Rosemary M. Collyer's February 11, 2020, decision denying the motion. Id. at 1358.

This Court is now convinced that exercising jurisdiction over the pending motion in this
matter would be inconsistent with the Foreign Intelligence Surveillance Court of Review's
decision. The FISCR determined that it lacked statutory subject-matter jurisdiction because
Congress did not empower the federal courts established under FISA to consider constitutional
claims, a freestanding motion asserting a qualified First Amendment right of access did not fall
within any of the FISCR's jurisdictional categories enumerated in the statute, and the movants
were not among the parties authorized by the statute to seek FISCR review. Id. at 1350-51.
Noting its "significantly limited powers carefully delineated by Congress," the FISCR also
declined to rely on the doctrine of ancillary jurisdiction to exercise discretionary authority over
the petition. Id. at 1356-57. It explained that such authority must be exercised with restraint,
discretion, and great caution, id. at 1356, n.69 (citing Ex Parte Burr, 22 U.S. 529, 531 (1824)),
and that the movants had not been involuntarily haled into court, did not seek to assert rights in
an ongoing action, did not establish a factual connection to the classified material, and did not
present circumstances warranting the exercise of the FISCR's inherent judicial power to enforce
its mandates and orders or protect the integrity of its proceedings and processes. Id. at 1356. In
addition, because the "crux" of the movants' claim to disclosure "[lay] within the Executive's
clear authority to determine what material should remain classified," the FISCR concluded that
"respect for the separation of powers dictates that we dismiss the Petition for lack of jurisdiction,

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as we have no business deciding the merits of the Movants' constitutional claim." Id. at 1357
(internal quotation marks omitted).

Applying the FISCR's reasoning to whether this lower Court has jurisdiction over the
pending motion leads to the same result. Like the FISCR, the FISC is not empowered by
Congress to consider constitutional claims generally, First Amendment claims specifically, or
freestanding motions filed by persons who are not authorized by FISA to invoke this Court's
jurisdiction. See id. at 1355 (stating that "specialized courts like the FISC" are not "empowered
to consider claims arising under the First Amendment to the Constitution"), 1350-51; 50 U.S.C.
§§ 1801-1885c. And because all of the above-described reasons why the FISCR found it
unwarranted to exercise ancillary jurisdiction apply to the pending motion, the FISC is
foreclosed from doing so here.

Accordingly, it is ORDERED that the Motion of the American Civil Liberties Union for
the Release of Court Records is DISMISSED for lack of jurisdiction.

SO ORDERED this IS day of September, 2020.

151

JAMES L. BOASBERG
Presiding Judge, United States Foreign
Intelligence Surveillance Court