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Supreme Court of the United States No. __-____ IN THE Supreme Courtd of the United States IN RE OPINIONS AND ORDERS OF THE FISC CONTAINING NOVEL OR SIGNIFICANT INTERPRETATIONS OF LAW ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW PETITION FOR A WRIT OF CERTIORARI OR, IN THE ALTERNATIVE, A WRIT OF MANDAMUS David D. Cole Theodore B. Olson AMERICAN CIVIL LIBERTIES Counsel of Record UNION FOUNDATION Amir C. Tayrani 915 15th Street, NW GIBSON, DUNN & CRUTCHER LLP Washington, DC 20005 1050 Connecticut Avenue, NW Patrick Toomey Washington, DC 20036 Brett Max Kaufman (202) 955-8668 Charles Hogle [email protected] Hina Shamsi Alex Abdo AMERICAN CIVIL LIBERTIES Jameel Jaffer UNION FOUNDATION KNIGHT FIRST AMENDMENT 125 Broad Street INSTITUTE AT COLUMBIA New York, NY 10004 UNIVERSITY Cecillia D. Wang 475 Riverside Drive, Suite 302 Jennifer Stisa Granick New York, NY 10115 AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 (Counsel continued on inside cover) Arthur B. Spitzer David Schulz Michael Perloff Charles Crain AMERICAN CIVIL LIBERTIES M EDIA FREEDOM & UNION OF THE DISTRICT OF INFORMATION ACCESS CLINIC COLUMBIA ABRAMS INSTITUTE 915 15th Street, NW Yale Law School Washington, DC 20005 P.O. Box 208215 New Haven, CT 06520 QUESTIONS PRESENTED Congress created the Foreign Intelligence Surveillance Court (“FISC”) in 1978 to oversee electronic surveillance conducted for foreign intelligence purposes. The FISC’s role was originally narrow, but today, as a result of legislative changes and new technology, the court evaluates broad programs of surveillance that can have profound implications for Americans’ privacy, expressive, and associational rights. The court’s opinions frequently include significant interpretations of statutory and constitutional law. Petitioner filed motions with the FISC asserting that the First Amendment provides a qualified right of public access to FISC opinions containing significant legal analysis—even if portions of the published opinions must be redacted. The FISC rejected one of these motions on the merits. Subsequently, in this case, the FISC and the Foreign Intelligence Surveillance Court of Review (“FISCR”) both held that they lack jurisdiction even to rule on Petitioner’s constitutional claim. The questions presented are: 1. Whether the FISC, like other Article III courts, has jurisdiction to consider a motion asserting that the First Amendment provides a qualified public right of access to the court’s significant opinions, and whether the FISCR has jurisdiction to consider an appeal from the denial of such a motion. 2. Whether the First Amendment provides a qualified right of public access to the FISC’s significant opinions. i PARTIES TO THE PROCEEDINGS Petitioner is the American Civil Liberties Union, Inc. (“ACLU”). The ACLU was the movant in the Foreign Intelligence Surveillance Court and the petitioner in the Foreign Intelligence Surveillance Court of Review. With respect to the petition for a writ of certiorari or common-law certiorari, Respondent is the United States, which opposed Petitioner’s motion and petition below. With respect to the petition for a writ of mandamus, Petitioner seeks relief directed to the U.S. Foreign Intelligence Surveillance Court and the U.S. Foreign Intelligence Surveillance Court of Review, which denied Petitioner’s motion and petition below. CORPORATE DISCLOSURE STATEMENT The ACLU is a non-profit corporation. It has no parent corporations and does not issue stock. RELATED PROCEEDINGS There are no directly related proceedings. ii TABLE OF CONTENTS Opinions below ............................................................ 1 Jurisdiction ................................................................. 1 Constitutional and statutory provisions involved ..... 1 Statement of the case ................................................. 1 Reasons for granting the petition .............................. 9 I. The questions presented by this case are extraordinarily important, and there is no possibility of further percolation. ....................... 9 II. The FISC’s and FISCR’s rulings were incorrect. ........................................................... 11 A. The FISC and FISCR have jurisdiction to hear right-of-access motions, and their holdings to the contrary are inconsistent with the decisions of other Article III courts. ........................................ 11 B. The First Amendment provides a right of access to significant FISC opinions. ...... 21 III. This Court has jurisdiction to correct the FISC’s and FISCR’s errors. .............................. 27 A. The Court has jurisdiction to issue a statutory writ of certiorari under 28 U.S.C. § 1254(1) and 50 U.S.C. § 1803(b). .................................................... 27 B. Alternatively, this Court has jurisdiction to issue a writ of mandamus or a writ of common-law certiorari. ........... 29 Conclusion ................................................................. 32 iii Appendix A, FISCR Opinion and Order (Nov. 19, 2020) .......................................................... 1a Appendix B, FISC Opinion and Order (Sept. 15, 2020) ......................................................... 4a Appendix C, Motion for Release of Records (FISC Oct. 16, 2016) ............................................................ 8a Appendix D, FISCR Opinion (April 24, 2020) ....................................................... 63a Appendix E, FISC Opinion (Feb. 11, 2020) ......................................................... 89a iv TABLE OF AUTHORITIES Cases [Redacted], 2011 WL 10945618 (FISC Oct. 3, 2011) ............... 4 [Redacted], 402 F. Supp. 3d 45 (FISC 2018) ............................ 4 ACLU v. Clapper, 785 F.3d 787 (2d. Cir. 2015) .................... 10, 22, 25 Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008) ............................................. 28 Banks v. Manchester, 128 U.S. 244 (1888) ............................................. 22 Bismullah v. Gates, 501 F.3d 178 (D.C. Cir. 2007) ............................. 27 Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ............................................... 14 Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) ............................................. 17 Dacoron v. Brown, 4 Vet. App 115 (1993) .......................................... 13 Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008) ................................. 22 Doe v. Pub. Citizen, 749 F.3d 246 (4th Cir. 2014) ............................... 12 El Vocero de P.R. v. Puerto Rico, 508 U.S. 147 (1993) ............................................. 23 Flynt v. Lombardi, 782 F.3d 963 (8th Cir. 2015) ............................... 12 v Gambale v. Deutsche Bank AG, 377 F.3d 133 (2d Cir. 2004) ........................... 14, 19 Globe Newspaper Co. v. Superior Ct., 457 U.S. 596 (1982) ................................. 18, 24, 31 Hagestad v. Tragesser, 49 F.3d 1430 (9th Cir. 1995) ............................... 15 Hamdan v. Rumsfeld, 548 U.S. 557 (2006) ............................................. 22 Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir. 2004) ................................... 23 Hertz Corp. v. Friend, 559 U.S. 77 (2010) ............................................... 28 Hohn v. United States, 524 U.S. 236 (1998) ................................. 21, 30, 31 Hollingsworth v. Perry, 558 U.S. 183, (2010) ............................................ 31 House v. Mayo, 324 U.S. 42 (1945) ......................................... 21, 31 In re Alterra Healthcare Corp., 353 B.R. 66 (Bankr. D. Del. 2006) ...................... 12 In re Application of Nat’l Broad. Co., 635 F.2d 945 (2d Cir. 1980) ................................. 12 In re Bennett Funding Grp., Inc., 226 B.R. 331 (Bankr. N.D.N.Y. 1998) ................. 13 In re Bos. Herald, Inc., 321 F.3d 174 (1st Cir. 2003) ................................ 23 In re Certification of Questions of Law to FISCR, No. 18-01, 2018 WL 2709456 (FISCR Mar. 16, 2018) .......................................... 4 vi In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990) .................................. 12 In re Motion for Release of Court Records, 526 F. Supp. 2d 484 (FISC 2007) ................. passim In re Sealed Case, 310 F.3d 717 (FISCR 2002) ................................ 28 In re Orders Interpreting Section 215 of the Patriot Act, No. Misc. 13-02, 2013 WL 5460064 (FISC Sept. 13, 2013) ...... 14, 25 In re Orders Interpreting Section 215 of the Patriot Act, No. Misc. 13-02, 2014 WL 5442058 (FISC Aug. 7, 2014) ........ 18, 26 In re Sealed Case, 237 F.3d 657 (D.C. Cir. 2001) ............................. 17 In re Stone, 986 F.2d 898 (5th Cir. 1993) ............................... 20 In re Symington, 209 B.R. 678 (Bankr. D. Md. 1997) ..................... 13 In re Wash. Post Co., 807 F.2d 383 (4th Cir. 1985) ............................... 20 Klayman v. Obama, 142 F. Supp. 3d 172 (D.D.C. 2015) ..................... 22 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ......................... 16, 17, 19 Link v. Wabash R.R. Co., 370 U.S. 626 (1962) ............................................. 14 Lowenschuss v. W. Publ’g Co., 542 F.2d 180 (3d Cir. 1976) ................................. 14 Michaelson v. United States, 266 U.S. 42 (1924) ............................................... 20 vii N.Y. Times v. DOJ, 806 F.3d 682 (2d Cir. 2015) ................................. 26 N.Y. Times v. United States, 403 U.S. 713 (1971) ............................................
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