FISA court rules it is 'not empowered by Congress' to release attorney misconduct files

The court argued that it lacked jurisdiction to divulge the records sought by Just the News founder and investigative journalist John Solomon.

Updated: September 22, 2020 - 8:29am

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The U.S. Foreign Intelligence Surveillance Court (FISC) is claiming it is "not empowered by Congress" to release information it may possess about FBI or Justice Department misconduct or discipline in sensitive surveillance matters pending before the secretive court.

The FISC's Chief Judge, James E. Boasberg, this month dismissed a May 2019 motion filed by investigative journalist and Just the News founder John Solomon and the Southeastern Legal Foundation seeking the publication of records pertaining "to attorney misconduct or discipline in certain matters."

The document points to a decision of the Foreign Intelligence Surveillance Court of Review (FISCR) to explain the reason for the decision to dismiss the motion due to a lack of jurisdiction. 

"Like the FISCR, the FISC is not empowered by Congress to consider constitutional claims generally, First Amendment claims specifically, or freestanding motions filed by persons who are not authorized by FISA to invoke this court's jurisdiction," Boasberg ruled.

Solomon, the editor in chief of Just the News, expressed disappointment with the court's ruling, saying shining a light on any government malfeasance is essential. 

"I'm disappointed by the court's decision," Solomon said. "We believe that if DOJ, FBI and the FISC know of disciplinary matters involving lawyers and agents who have practiced before the court they should be made public for the good of the American people. Transparency when wrongdoing occurs is the best solution, especially in a rare secret court like the FISC. We are examining our next options."

Solomon's attorney, Kimberly S. Hermann of the Southeastern Legal Foundation, also conveyed disappointment about the court's decision not to divulge the information.

"Disclosure of attorney misconduct and discipline for lying, misleading, and withholding information from the FISC is absolutely vital to re-establish the damaged public trust in the American system of justice," she told Just the News.

"We continue to believe that the First Amendment right of access to court records extends to documents before the FISC and that they must be made public to protect the integrity of the judicial system," Hermann said.

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