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Posted by on Jun 12, 2013 in Featured, Law, Terrorism | 3 comments

Fixing FISA: A Moderate Proposal

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Even though Edward Snowden’s disclosures of NSA data-gathering programs was unquestionably dishonest, disloyal, and self-aggrandizing and even though major elements of Snowden’s stories are implausible enough to be fairly called lies. But Ron Fournier at the National Journal reraises a question that is worth answering:

Why does a secret federal court almost always side with the government’s requests to seize information.

We must first reject Snowden and affiliated activist Glenn Greenwald’s fundamental claim by pointing out that the NSA monitoring program is probably not illegal or unconstitutional. It is a long-standing principle in American law that information like dialed phone numbers and visited URLs is not private when individuals voluntarily provide it to third parties like phone companies and internet service providers. And the flat truth is that that the NSA had a court authorization to gather the information, as proven by Snowden himself when he publicized a copy of the court order.

But as Fournier references, that order came from the FISA court, a secret court set up specifically to allow the government to get warrants to access information without alerting the targets. We should also climb down off Greenwald and Snowden’s Hysteria Mountain long enough to realize that the FISA court fulfills an absolutely necessary function. Monitoring distributed networks like al-Qaeda absolutely requires some mechanism to cast a huge global information-gathering net without alerting individual targets that the U.S. government is on to them.

But Fournier is right to wonder why FISA should nearly always grant the government whatever it requests. Are we really to believe that the NSA or other intelligence agencies literally never, ever, ever overreach with their requests or base them on inadequate reasons? It seems unlikely.

The problem might arise from the nature of FISA itself: it is a non-adversarial process where only the government presents information and where that information is not subject to challenge. In a regular investigation, there is at least some potential for the target of the investigation to cry “foul” and bring information to the court that undermines the government’s basis for pursuing the investigation. Regular warrants can be challenged as overbroad, overly intrusive, or not supportable by probable cause or even reasonable suspicion. No such mechanism exists in FISA. Indeed, this is a feature not a bug because doing so in the regular way would alert targets that they have been detected, making it more difficult to track and counter an organization like al-Qaeda.

But a mechanism could be added to adjust the FISA process to introduce some check on the government’s ability to obtain a rubber stamp from a court without compromising its ability to hide its activities from the targets of national-security investigations. And no, the best such process does not lie in allowing egomaniacs like Snowden and Greenwald to have veto power over what the government is allowed to do. Rather, it lies in introducing an adversary — call it an ombudsman or a public defender — into the FISA proceedings as an institutional skeptic, empowered to participate in FISA proceedings to challenge the government’s requests as overbroad or not supported by reasonable suspicion.

Provided that the ombudsman’s activities were limited by the same secrecy rules that bind FISA already (and that Snowden flaunted with no legal basis for doing so), this would introduce a check against the government without compromising the basic purpose for which FISA was established in the first place. At least, it is a place to begin a real debate focused on policy options instead of the Snowden/Greenwald vanity exercise we have right now.