The Foreign Intelligence Surveillance Court of Review has selected Laura Donohue, a professor at Georgetown University Law Center, to help determine whether the ACLU can sue for access to decisions related to the government’s counterterrorism program revealed in 2013 through the leaks of Edward Snowden.
The three-judge review panel of the secretive surveillance court on Tuesday appointed Donohue as amicus curiae and asked her to file a brief in the matter, along with briefs from the ACLU and the government. At issue is whether the ACLU and Yale Law School’s Media Freedom Information Clinic have established, after more than four years of litigation, that they have standing to bring a First Amendment claim of access to the decisions in question. Those decisions lay out the legal justification for the National Security Agency program that collected bulk phone data of U.S. citizens. Much of those opinions have since been made public, but the plaintiffs are seeking to unseal redacted portions.
Donohue is the director of Georgetown’s Center on National Security and the Law and director of the school’s Center on Privacy and Technology. She is an expert in national security law and created a national security crisis simulation that each year brings law students from different campuses to Georgetown for two days where they assume the roles of public officials responding to a major disaster such as a missing nuclear warhead or an Ebola outbreak.
Her book, The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age, was published in 2016.
Donohue is one of five amici curiae appointed by the surveillance court in 2015, who are on standby should the court need their expertise. The amici are tasked with providing legal arguments that “advance the protection of individual privacy and civil liberties,” as well as offer information about intelligence collection and technology. The five amici positions were established under the USA Freedom Act—the successor to the Patriot Act passed in 2015—which was introduced in the wake of Snowden’s leaks of classified National Security Agency memos. The legislation included several new limits on the surveillance of U.S. citizens.
The ACLU first sued in 2013, asking the surveillance court to unseal classified sections of its opinions that lay out the legal basis for the government’s data collection program. (The court had approved much of the program under the Patriot Act.) Because many of the details of the program had already been revealed by the media and government officials at that point, the ACLU argued that it has a First Amendment right to the court opinions that contain the legal justification for the surveillance program. Snowden was working as a contractor for the NSA when he leaked classified documents detailing the phone data collection program to various news outlets.
Presiding surveillance court judge Rosemary Collyer last January dismissed the ACLU’s case on the grounds that it lacked standing. But the court reached the opposite conclusion in November after an en banc review—the first in the court’s history. Still, a majority of the judges later agreed the Foreign Intelligence Surveillance Court of Review should determine whether the surveillance court has jurisdiction to consider the ACLU’s motion to unseal its earlier decisions.
The court of review comprises Judge William Bryson of the U.S. Court of Appeals for the Federal Circuit; Judge Jose Cabranes of the Second Circuit; and Richard Tallman of the Ninth Circuit.