A Closer Look at the FISA Court

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Judges selected for the Foreign Intelligence Surveillance Court by Chief Justice John Roberts are trending towards ideologically conservative judges with executive branch connections, leading to concerns that the court will grow even more biased in favor of government surveillance requests.

There is a lot of surprising information in that one sentence, starting with the fact that the judges are selected by the Chief Justice rather than by the President. And apparently there is no Senate confirmation process.

The article also highlights the roots of the FISA court and the possible poor fit between those origins and the current function that the FISA court has to fulfill:

The court’s complexion has changed at a time when its role has been expanding beyond what Congress envisioned when it established the court as part of the Foreign Intelligence Surveillance Act. The idea then was that judges would review applications for wiretaps to make sure there was sufficient evidence that the F.B.I.’s target was a foreign terrorist or a spy.

But, increasingly in recent years, the court has produced lengthy rulings interpreting the meaning of surveillance laws and constitutional rights based on procedures devised not for complex legal analysis but for up-or-down approvals of secret wiretap applications. The rulings are classified and based on theories submitted by the Justice Department without the participation of any lawyers offering contrary arguments or appealing a ruling if the government wins.

The challenge now is to address the FISA court’s shortcomings without going all Snowden about it and compromising its legitimate role in American counterterrorism efforts. I suggest the following:

1. Require that appointments to the FISA court be made by the President and confirmed by the Senate Intelligence Committee, deliberating and voting in closed session.

2. Appoint an internal ombudsman to act as “defense advocate” challenging government surveillance requests to ensure they are not overbroad, unsupported by evidence, or contrary to law. Allow the ombudsman to appeal adverse rulings to the FISA review panel and the U.S. Supreme Court.

3. Codify existing NSA policies limiting retention and use of data gathered on Americans (Glenn Greenwald and Edward Snowden initially concealed these details….gee, I wonder why…) into statute, and empower the FISA court to sanction the government and even refer government officials for criminal charges (criminal penalties would have to be included in the statute) if the government is found to exceed its data-gathering authority.

These seem moderate responses to defects in the existing FISA process that do not embrace the paranoid worldview of anti-NSA extremists.

Edit to add: I do not mean to imply that all critics of the NSA or all participants in efforts to limit the NSA’s reach are paranoid extremists. There are legitimate privacy concerns about the NSA. But it is fair to note that there are some anti-NSA people who do leap into the fever swamps. For example, one paranoid extremist may include Snowden himself. A Twitter account that may be Snowden (it’s Twitter, so you can never be sure, though Snowden has claimed he unhackable even by the world’s top computer experts) today claimed that the only reason the House voted down a bill to defund some NSA surveillance programs was that the CIA had threatened to “assassinate” the “entire families” of any Representatives who cast a deciding vote in favor of the bill. I think it is legitimate to call that worldview “paranoid extremism.”

  

Author: LOGAN PENZA

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16 Comments

  1. This article was useful and informative until the final sentence which I found unnecessary and kind of a cheap shot at those who might disagree. Rather than argue with you, Logan, I will simply point out that, within the last 72 hours, 205 members of the U. S. House of Representatives voted to shut down the NSA program. I do not regard those 205 members as embracing a “paranoid worldview” or all being “anti-NSA extremists.” Just my view. You’re obviously entitled to yours.

  2. It was certainly not my intention to lump together everyone who has a concern about the NSA. That’s why I said the debate is generally legitimate. But I think there are some very prominent members of the anti-NSA mob, including Greenwald and Snowden, who are fairly characterized as paranoid extremists and/or who actively seek to injure the United States. And I don’t agree that commenting about their paranoid extremism or anti-Americanism is out-of-bounds.

    I will continue to try to take care to differentiate between them and those engaged in legitimate debate, however. Thank you for your comments. I wrote an addendum to the post to clarify.

  3. Just out of curiosity Logan, how should the Boston bombing victims, their families and all of us feel about our “crack” security measures in this country when these two were ALREADY under suspicion before they even went to meet with extremists in Chechnya and STILL couoldn’t make it work??

    Think maybe the program is just a minimally useful tool at best, and a HUGE infringement on our civil rights at worst.

  4. I think they would be distressed to learn that the system did not work effectively to prevent the attack. But I think they would be even more distressed to learn that people like Snowden and Greenwald want to make the system even less effective by prohibiting ALL monitoring of potential terrorists’ communications if those potential terrorists happen to be U.S. residents and by preventing the government from using known terrorists’ communications to identify their unknown associates. (And that’s just what the Amash bill would have done. As near as I can tell, Snowden and Greenwald appear to seek the complete elimination of ALL national security data gathering, though I admit that their refusal to clarify specific preferences makes it difficult to be sure.)

    By the way, collection of metadata (e.g. the phone numbers you call) doesn’t infringe on civil liberties at all. There is long-standing caselaw that makes clear that people have no privacy interest in information (like dialed telephone numbers) that they voluntarily provide to a third party (the telephone company). So maybe we should all take a deep breath and calm down before freaking out about “HUGE infringement[s] on our civil rights.”

  5. I, again, agree wit you,Logan.

    On the one hand people like Snowden and Greenwald cry to high heaven because the system they are trying to dismantle did not work perfectly. On the other hand, I wonder what people like Snowden and Greenwald would say when a massive terrorist attack occurs that could have been prevented IF the system had not been gutted.

  6. If only it was JUST phone numbers they were gathering! Those who believe that are living in a fool’s paradise.

  7. Dorian, unfortunately Snowden and Greenwald always refuse to respond to questions asking them to articulate what alternatives they seek, so we are left to speculate based only on their hyperbole and megalomania.

  8. sheknows,

    This is just for clarification. Sometimes statements are facially true, but contain more nuance than first appears. The longstanding case law to which Logan refers is Smith v. Maryland, a 1979 Supreme Court case. The victim of a robbery received obscene and threatening phone calls from a person identifying himself as the robber. She saw his car in front of her house, took the license number and informed police.

    Based upon that, police had a reasonable suspicion [different from fishing expedition saturation surveillance] to ask the phone company to place a pen register on the man’s phone number to see who he called. The Supreme Court ruled that he had no legitimate expectation of privacy.

    Not only is this case different from the saturation surveillance of the NSA, but after the case was decided Congress was concerned enough that it enacted a statute to clarify:

    Although Smith upheld the constitutionality of the installation of a pen register [at the phone company computer's location] without a warrant, 18 U.S.C.A. § 3123 now requires a court order, based on a law enforcement officer’s declaration that the information is relevant to an ongoing investigation, before a pen register may be installed.

    Just FYI.

  9. Yes, a court order is required. For all its flaws, FISA is a court and it issued orders authorizing the data-gathering that Snowden et al. claim is illegal. And sweeping gathering of communications metadata is necessary to construct a database against which queries can be run to identify communication networks of global terrorist groups like al-Qaeda. That meets the “ongoing investigation” element.

    As I said, there is a legitimate debate about what the parameters of the law should be. But it is overheated and wrong to assert, as Snowden, Greenwald, and others have, that the NSA is engaged in a systematic violation of civil liberties. I don’t agree that sound public debate is fostered by exaggeration of some details and suppression of others. Unfortunately, that has always been Greenwald’s style and now he has himself a real, live boy instead of a sock puppet.

  10. Snowden and Greenwald’s opinions aren’t very relevant at this point. I appreciate what they did in releasing the information but I wouldn’t look to them for solutions.

    ES thanks for that info. It also seems to me there is information gained from tracking cell info that was not gained by tracking a single land line, and the Justice Dept claiming equivalence is specious.

  11. Logan, The NSA was already found guilty of civil liberties violations before. I am sure you know this is not the first time there have been whistleblowers.

    Dorian, you might be interested to see how they were treated for “doing it right”. Please go to Wikipedia under Trailblazer Project. Thanks

    Thanks Elijah for that info.

  12. What’s wrong with the old fashioned notion that wiretap court orders/warrants could only be used against individuals? The problem with the NSA is that it’s basically a blanket slurping up of data of nearly everybody, and it’s a slurping up of data that’s probably not very useful at all in tracking down terrorists:

    3 Questions About NSA Surveillance
    Why Data Mining Won’t Stop Terror
    Public Documents Contradict Claim Email Spying Foiled Terror Plot

    Then there is the issue of counter-terrorism mission creep that could easily be abused by these wiretaps:

    Counterterrorism Mission Creep

    Also, this statement from security expert Bruce Schneier sums up how the program itself is a threat to national securuty and the leak is beneficial to national security:

    It’s not public knowledge of PRISM that poses a risk to national security, it’s the database itself — and the other databases with other names, and the NSA in general. Massive invasions of privacy without counterbalancing transparency and oversight are very dangerous to the security of our nation. It’s the reason our Constitution forbids it, and the reason we don’t look longingly at other governments that treat their citizens in this way.

    The leak is the best thing that could happen to national security, because it gives us a chance at fixing these genuine threats.

  13. “Absolute power corrupts absolutely”

    For many who feel that they must find fault with Snowden, or believe that the government is correct in everything it does ( my country right or wrong )and is greatly angered by this revelation, or deflects that anger onto the messenger, you are having a “conditioned response”.
    IMO, our government is not the same thing as our country…the country we love. I say that because since when has the government worked in tandem with the ideals of the American people. The government has become a secretive, all powerful entity that does what it wishes and gets rid of those who oppose it’s complete authority ( one way or another). Is THAT the government of our ideals? Is that the government who once said ” give me your poor, huddled masses” and now says “you can’t come in” just as one tiny example. Laws passed every day that take away more of our rights?
    I see no contradiction in loving my country ( what it stands for and USED to be) and being VERY displeased with our government.
    I see no contradiction in feeling Snowden is correct to have done what he did ( however slap-dash poorly) and saying I am proud to be an American.

  14. The addendum notwithstanding, the implication seemed clear enough. Let’s just turn it around for a moment and see how it would look: “…the sheeplike worldview of pro-NSA extremists”. Ain’t hyperbole grand! Btw, I agree that having the chief justice select FISA judges is a bad idea, particularly given the extreme views and judicial activism of Roberts, Scalia, Alito, and Thomas.

  15. I see no contradiction in feeling Snowden is correct to have done what he did ( however slap-dash poorly) and saying I am proud to be an American.

    I should hope not! Just as there is no contradiction in having an anti-war stance and loving one’s country.

  16. JS , This was stated for those who apparently cannot make that distinction.

    also, sorry to say, during Vietnam, a lot of soldiers and people would have disagreed with that as well.

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