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Posted by on Jul 26, 2013 in Law | 16 comments

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.”

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