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October 17, 2013

Turn Back the Clock on FISA Courts

By Daniel Schuman

Uncle Sam SpyingCongressional efforts to rein in domestic surveillance programs are now focusing on the Foreign Intelligence Surveillance Court (FISC), a special tribunal that secretly reviews government requests to spy on domestic targets.

Over the years, the FISC has expanded its authority with results that are inconsistent with a free society. It is time to return the FISC to its original limited mission and restore traditional federal courts to their proper roles as arbiters of the law.

Congress created the FISC in response to the executive branch’s lawless, politically-motivated domestic eavesdropping practices. The abuses, uncovered by the Church Committee in the 1970s, included unlawfully spying on US citizens, such as civil rights leaders, antiwar protestors, politicians, diplomats, union leaders, and religious figures, often at the request of those in power. The FISC was created to review domestic surveillance requests.

Troublingly, over the decades the FISC secretly expanded its role from approving individual wiretap requests to broadly approving types of surveillance. For example, it expanded an exception to the Fourth Amendment to allow dragnet collection of telephone metadata without a warrant. The FISC created a body of secret law addressing broad constitutional questions, and has become “almost a parallel Supreme Court,” in the words of New York Times reporter Eric Lichtblau. And yet, the FISC “never had the authority to declare law,” according to former Vice President and Church Committee member Walter Mondale. It is “now taking cases that should go to regular federal courts.”

The FISC differs greatly from regular (Article III) courts. Its hearings are closed to the public, and records of its proceedings are almost always secret. The FISC hears argument only from the government before making a decision, and the interests of the requested warrants’ targets are not separately represented. Rulings are kept secret from the public, and appeals are rare. Further, the Chief Justice of the United States Supreme Court appoints judges to the FISC from a pool of federal judges for a term of seven years, without the normal process for judicial appointments of presidential nomination and Senate confirmation.

Even while it green-lights expanded government surveillance, the FISC’s oversight capabilities are limited. The Court’s current chief judge, Reggie Walton, has acknowledged, “The FISC is forced to rely upon the accuracy of the information that is provided to the Court…. The FISC does not have the capacity to investigate issues of noncompliance.” There is no check on government claims. Unsurprisingly, the Washington Post reported the NSA overstepped its surveillance authority thousands of times per year, while the government has mislead the Court and lied to Congress.

Members of Congress have responded to revelations about the FISA Court’s failings with four kinds of proposals. One proposal would defund some government domestic surveillance programs, such as the NSA’s ability to gather telephone metadata. Another proposal would change how judges are appointed to the FISC, addressing concerns about balance, and a third proposal would create a special privacy advocate to argue against the government. A fourth calls for declassification of FISC opinions. While all are reasonable, Congress should do more.

  1. Congress should empanel a modern Church Committee to investigate the intelligence community. We need to know the full scope of abuses and identify where the oversight system has gone awry. The executive branch must disclose to Congress when it has acted under its “inherent” authority, and such disclosures must become commonplace.
  2. The FISC should again be limited to approving individual wiretap requests, with its ability to approve broader surveillance activities rescinded. Constitutional and statutory interpretation should be left to traditional courts. And, to the extent surveillance measures were authorized by broad FISC opinions, Congress must step in and decide whether they should persist.
  3. Proposals to publish FISC opinions, change how judges are chosen, and create a special advocate should be implemented.

The history of government surveillance is replete with abuses and cover-ups. We must seize the rare opportunity to fix this broken system while we can.

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