The Supreme Court clerk's illegal rejection of our appeal makes it clear that the law describing how to appeal decisions from the nation's secret courts needs clarification.

We need your help to do this.

The Problem

The law on who can appeal secret court decisions is muddled in critical locations. If the government loses the case, the law provides a clear mechanism for appeal. However, if the government wins, the law provides no clear guidance on who can appeal. There is a legal principle which, loosely paraphrased, says that there must always be a path for appeal.

This is made more complicated by the secret nature of the court. An amicus curae is usually appointed by a court when the defendant drops out of a case. By dropping out, they give up the right to appeal. However, in the secret court, the defendant is never present and cannot give up the right to an appeal. This leaves the unanswered question of whether or not the amicus is granted all the rights of the defendant, including appeal.

The Changes

Our lawyers, Walsh & Walsh LLP, have sent a letter to the house and senate judiciary committees, requesting that they examine two proposed changes.

The first change explicitly provides a path to appeal decisions from the FISA Court of Review to the Supreme Court. In our appeal, the clerk claimed that the FISA Courts are not answerable to the Supreme Court, effectively making the secret courts their own entirely separate judiciary. The proposed change fixes this problem by providing an explicit path for appeal to the Supreme Court on behalf of the (unnamed) defendants.

The second change is intended to fix an issue with the use of information gathered via the FISA Court. Typically, the defendant is able to challenge the facts that lead to the issuing of a warrant. However, when the warrant is issued by the FISA Courts but used in another court, the government generally gets to keep the underlying facts secret. Unfortunately, the burden is on the defendant to show why the warrant is invalid. Without the facts, challenging the warrant is almost impossible - stripping away one of the most useful tools for defense attorneys. It also means there is never a true examination of the fairness or correctness of the FISA warrants.

How to Help

Contact your senators and your representative. We recommend calling them - office staffers frequently say that if you don't call, it won't get noticed.

You will want to:

• Ask to speak to the staffer who handles mass surveillance issues
• Explain to the staffer you're calling in support of Thaw America's call for FISA reform. Chances are they won't have heard of it¹; please direct them to this page (or our website in general) to learn more.
• Be informed! The more you can explain to them, the more seriously your call will be taken.

You can find your representative here and find your senator here.

The Letter

The full text of the Walsh & Walsh letter is reproduced below, sans addressing information.

In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. 1801, et seq, which created the Foreign Intelligence Surveillance Court of Review (FISCR). FISCR exists to hear appeals from the Foreign Intelligence Surveillance Court (FISC).

We recently attempted to appeal a decision of FISCR, which allows the government to collect constitutionally protected private information without a warrant from FISC provided that the government does not use the information which it has illegally collected.

The Supreme Court of the United States claims that they lack jurisdiction to review the actions of FISCR. This exacerbates the conundrum created where FISC allows warrants to collect information deferring to the Article III courts to adjudicate its admissibility, while the Article III courts decline to do so under collateral estoppel as FISC has already heard from the government and ruled on the matter.

As the Supreme Court lacks jurisdiction to provide general superintendence over the foreign intelligence surveillance courts, only congress can act to protect the privacy of all Americans whose cellular communications are monitored. 50 U.S.C. 1803 should be amended by the addition of a new subsection: (e) Decisions of the Court of Review, are subject to appellate review, upon petition for a writ of certiorari, by any interested party, to the Supreme Court. Section 1802 should also be amended by the addition of a new subsection: (c) The admissibility of information collected under this chapter shall be subject to de novo review.

Thank you for considering this request in the upcoming session.