Surveillance and F.I.S.A.
With Edward Snowden’s release of government data on the surveillance of American citizens and those abroad, people have been concerned about invasion of their privacy, with ”big brother” snooping on their emails and phone calls. Government officials have claimed that what they are doing is legal and that in order to actually look at specific communications they have to have approval of the FISA Court, established by the Foreign Intelligence Surveillance Act of 1978.
FISA Court judges are appointed by the Chief Justice of the Supreme Court and are overwhelmingly Republican and conservative. Originally, their mission was to vet requests for surveillance of suspected foreign intelligence agents. However, currently, they are mainly asked to approve government scrutiny of communications to and from American citizens with suspected terrorist links. Suspicion has been raised by the pattern of these citizens’ emails and/or phone calls to countries that harbor terrorists, such as Yemen or Pakistan, or actual contacts with known terrorists or advocates of violence against America and Americans.
In general, a single FISA judge decides the merits of the government’s request presented in a secret hearing without opposing views. Questions have been raised as to whether FISA approval is virtually automatic, a rubber stamp to provide the government with a legal cover for its activities. Since the law went into effect, the government has made tens of thousands of requests for a FISA judge to authorize surveillance, and only a handful of these have been turned down. Because of this, some privacy advocates believe that the FISA Court is not an impartial tribunal and suffers from a pro-government bias.
The FISA Court did validate the collection of communications data from American citizens by the National Security Agency, saying that it did not contravene the Fourth Amendment of the Constitution. This protects citizens “against unreasonable searches and seizures” and says that warrants should only be issued for probable cause. In the vast surveillance net cast over all Americans by the NSA, it was obvious that probable cause for illegal conduct was not evident for the overwhelming majority.
It may be that the FISA Court decided to allow this surveillance because the NSA supposedly does not examine individual messages without FISA authorization, but was instead analyzing patterns of communication to decide who might be suspected of contacts with terrorists or fomenting
terrorism. Unfortunately, the American public does not know the reasons for the FISA Court’s rulings, since all the Court’s work has been conducted in secret.
To date, there has been no oversight of the FISA Court and no transparency regarding its rulings on surveillance. However, with the NSA going fishing for terrorists and trying to keep the nation safe, some degree of secrecy is certainly required. But perhaps after the fact, an independent panel could review FISA decisions, so that American citizens could be more secure in the knowledge that these rulings were appropriate and impartial.
It might also be worthwhile to have a confirmation process for FISA judges by the Senate after nominations have been made by the Chief Justice of the Supreme Court, rather than leaving the appointments solely in the hands of one man. Though these men and women have already been approved by the Senate to sit on the bench, FISA responsibilities differ from those of other
judges. And the confirmations could be expedited given the prior approval by the Senate.
If surveillance of American citizens is necessary to reduce the risk of terrorism, some way must be found to increase oversight of the process and provide as much transparency as possible.