The common law and First Amendment qualified right of public access to foreign intelligence law

Part I begins with a historical treatment of the common law presumed right of access to judicial records, laying out the contours of the current test. Part II turns to the First Amendment qualified right of access, drawing out the test applied by the courts and providing examples of procedures and m...

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Bibliographic Details
Published in:The Georgetown law journal 2023-12, Vol.112 (2), p.271-347
Main Author: Donohue, Laura K
Format: Article
Language:English
Subjects:
Access control
Common law
Constitutional law
Court records
Disclosure of information
Evaluation
Inspection
Intelligence gathering
Judicial opinions
Judicial power
Laws, regulations and rules
Management
National security
Petition, Right of
Rule of law
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Summary:Part I begins with a historical treatment of the common law presumed right of access to judicial records, laying out the contours of the current test. Part II turns to the First Amendment qualified right of access, drawing out the test applied by the courts and providing examples of procedures and muniments thus covered, before examining, in Part III, interests jointly protected by the common law and First Amendment framings. Part IV focuses on three parallel First Amendment right of access cases brought before the Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence Surveillance Court of Review (FISCR) in 2013 and the months that followed, in which litigants sought access to FISC opinions containing significant interpretations of law. Part V tackles the argument that the sensitive nature of matters before the FISC/R and their institutional design foreclose public access. The article concludes in Part V by noting that while certain information may need to be withheld in relation to particularly sensitive intelligence, insofar as matters of law and the logic employed to reach the courts’ conclusions are concerned, the public has a right to seek access to the associated judicial muniments.
ISSN:0016-8092