WASHINGTON — The American Civil Liberties Union asked the Supreme Court on Monday to unlock the doors to the nation’s foreign intelligence wiretapping court, arguing that Americans have a First Amendment right to ask its judges to disclose secret rulings affecting their privacy.
If the justices take the case, it would be a landmark intervention: Since Congress created the secretive court system to regulate national-security surveillance in 1978, the Supreme Court has never agreed to review any of its decisions. And among a bevy of supporters who signed the petition, one name stood out: the prominent lawyer Theodore B. Olson.
Mr. Olson has helped bolster government surveillance powers in past phases of his storied career. As head of the Justice Department’s Office of Legal Counsel in the Reagan administration, he secretly blessed National Security Agency tactics. As solicitor general in the George W. Bush administration, he successfully defended part of the USA Patriot Act, a surveillance law Congress enacted after the Sept. 11, 2001, terrorist attacks.
This time, however, Mr. Olson is putting his weight behind groups who tend to be skeptical of government surveillance powers.
They are seeking overturn decisions in the Foreign Intelligence Surveillance Court system which rejected the A.C.L.U.’s claim that it has a First Amendment right of access to petition for disclosures of rulings affecting Americans’ privacy rights. Supporters argue that while people may disagree about the merits of such rulings, it is crucial that the public have access to them.
The surveillance court’s assertion that it “cannot even consider such a claim,” the petition said, “cannot be squared with the unbroken tradition of public access to judicial opinions, or with the logic in upholding a qualified entitlement to legal opinions concerning the nation’s surveillance laws.”
The petition was also signed by lawyers at the A.C.L.U., at an open-government advocacy clinic at Yale Law School and at the Knight First Amendment Institute at Columbia University. Mr. Olson is a member of the latter organization’s board.
Following revelations in the 1970s that administrations of both parties had abused national-security wiretapping powers, Congress enacted the Foreign Intelligence Surveillance Act, or FISA, to impose a warrant requirement for wiretapping on domestic soil in counterintelligence or counterterrorism investigations.
The law created a special court made up of sitting federal judges to review such applications. Because only the government appeared before it, submitting secret evidence that a target was most likely an agent of a foreign power, this court has conducted nearly all its work outside public view.
In 2013, as part of Edward J. Snowden’s leaks, it came to light that the surveillance court had for years interpreted a provision of the USA Patriot Act to justify secret bulk collection of logs of all Americans’ phone calls and emails, prompting an uproar.
In another case brought by the A.C.L.U., a regular federal appeals court later said that interpretation of the law was wrong. Congress outlawed bulk data collection under the Patriot Act, created a new position of an outsider with a security clearance to help FISA judges critique government arguments, and decreed that significant FISA court rulings about what surveillance law means must generally be made public, with appropriate redactions.
The petition suggests, however, that this disclosure requirement is inadequate. Decisions about what to release are conducted by the executive branch, not the court. The government does not follow the same standards courts have applied to public access claims to other court records, and it can waive disclosure for national-security reasons. And the government has taken the position that the requirement does not apply to rulings before 2015, when Congress enacted the overhaul.
The A.C.L.U. has failed in several attempts to get surveillance court judges to order the release of the court’s rulings. In the most recent, it lost on a jurisdictional question. But it has also lost on the legal merits of claims that the public has a First Amendment right of access to opinions that affect its privacy and free association rights.
If the Supreme Court decides to accept the petition and take up the case, Mr. Olson said that he would be willing to argue the matter if the A.C.L.U. wanted him to do so. By his count, he has argued 65 cases before the justices.
Mr. Olson was long known as a consummate Republican establishment lawyer. He argued the Bush v. Gore case, which handed victory in the disputed 2000 election to Mr. Bush, and the Citizens United case, which amplified the power of corporate money in politics.
His later legal work has expanded beyond traditional Republican Party positions, including challenging California’s former ban on same-sex marriage and representing the young undocumented immigrants known as Dreamers. Still, given his history in surveillance matters, his participation in this case is striking.
In 1984, as head of the Office of Legal Counsel, Mr. Olson signed what has been described as a landmark memo blessing National Security Agency surveillance techniques of that era that Congress did not cover in FISA — like tapping transoceanic cables from the international seabed, and intercepting satellite transmissions — as lawful even when they swept in Americans’ communications without a warrant.
The government is still keeping that memo secret. In 2018, a federal judge rejected a Freedom of Information Act lawsuit filed by The New York Times seeking its public disclosure, deferring to the executive branch’s decision that it must remain entirely classified. (In a separate case, the A.C.L.U. has also sought its disclosure without success.)
In an interview, Mr. Olson chuckled when asked about the 1984 memo. He recalled visiting the National Security Agency more than two decades later, as a member of the Privacy and Civil Liberties Oversight Board, and said agency officials came up to him and said, “oh the Olson Opinion, the Olson Opinion. Years later, and they were still talking about the Olson Opinion — but not very publicly.”
Mr. Bush appointed Mr. Olson to that board after he had served as solicitor general in the president’s first term, making him one of its most important legal officers in the post-Sept. 11 period. (Mr. Olson’s wife was among the victims of those attacks, as a passenger on the plane that Qaeda hijackers crashed into the Pentagon.)
In 2002, he appeared on behalf of the government before the FISA review court, a three-judge panel of appellate judges, in the first case in which it was convened to hear an appeal of a surveillance court decision. He persuaded the panel to overturn a surveillance court ruling that had struck down an expansion of government power in part of the USA Patriot Act.
In the interview, Mr. Olson said he stands by his legal work on surveillance legal policy in 1984 and 2002 — even though this time around, he stands in a different corner.
“Judges can’t render opinions that are completely insulated from public review,” Mr. Olson said, adding: “I think we are on sound footing.”
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