Lost in the tumult surrounding the National Security Agency surveillance program is the imperative of overseeing the intelligence community to ensure it operates effectively — while respecting privacy and civil liberties.
Much of the quotidian work has fallen to the little-known Foreign Intelligence Surveillance Court (FISC), but the institutional framework under which it operates needs rethinking after more than three decades.
The Church Committee, established in 1975 to investigate intelligence abuses, recommended creation of a court to oversee government intelligence agencies. The FISC was established to review surveillance requests to ensure they stayed within the bounds of the statute and the Constitution.
For most of its existence, the court’s docket consisted of cases that resembled traditional criminal wiretaps. However, since the 2001 terrorist attacks, the court has heard a range of new types of applications that have gone beyond targeted surveillance to encompass collection of enormous amounts of information, including domestic data.
The FISC now hears arguments and requests that are far more complex, resembling in many respects the types of statutory interpretation and analysis done in traditional Article III courts. Yet the court hears these cases in a fashion entirely unlike a regular court — in total secrecy and without benefit of an adversarial process.
While the FISC’s responsibilities have grown, Congress has not updated the court to put in place new procedures to allow it to function in a rigorous and more transparent fashion. The secrecy necessary in the court means it will never operate the same way as a traditional court, but sensible reform can be made to serve as a credible check on overreaching surveillance requests.
First, we should let some sunshine into the FISC’s chambers. Nearly everything about it is highly classified. Sources and methods of intelligence gathering must be protected, but the court’s legal reasoning should be up for public review once it has been disentangled from classified information.
I have introduced bipartisan legislation that would require the attorney general to declassify opinions that contain significant interpretations of law or issues of constitutional dimension. The Obama administration has taken steps toward declassifying certain orders and opinions. However, it’s important to put in place a prospective requirement.
Next, Congress should reform the way FISC judges are appointed. Currently, the chief justice appoints all 14 judges who make up the FISC and the Court of Review from among federal circuit court judges. Though Chief Justice John Roberts Jr. doubtlessly takes this charge seriously, a single decision-maker does not lend itself to an ideologically diverse court. We need a more open appointment process that allows for checks and balances.
I have introduced legislation that would require FISC and Court of Review judges to be nominated by the president and confirmed by the Senate. The confirmation process provides a vital opportunity to review candidates who will be ruling on issues with broad significance. Given the FISC’s jurisdiction and the importance of having a full roster of judges, I believe the Senate would act in an expeditious fashion to confirm appointees, especially as prospective FISC judges will have gone through the confirmation process before.
Finally, the FISC needs to hear from someone who can speak to the privacy interests of the American people, and not only government attorneys. James Carr, a FISC member from 2002 until 2008, recently argued that its judges, and the public, would benefit if opposing counsel could participate in certain cases.
As Carr noted, in no other setting are judges asked to rule on complex and novel issues involving statutory interpretation, constitutional considerations and new technologies while only hearing one side. Federal judges are experienced and intelligent, but they are not omniscient, and their rulings would benefit from hearing more than one perspective.
I am introducing legislation that creates a procedure for an independent, nongovernmental “public interest advocate” to participate in certain FISC cases. My bill vests the Privacy and Civil Liberties Oversight Board with the authority to appoint a pool of attorneys to represent the public interest in significant cases.
Once appointed to a case, attorneys would participate fully in the proceedings with the opportunity to respond to government arguments and motions. Perhaps most important, they could appeal decisions to the Court of Review, or even the U.S. Supreme Court.
The conversation about NSA surveillance programs is overdue, and I agree with the president — we should welcome the debate. There will always be a need for collecting signals intelligence to protect our nation, and there will always be a risk of overreaching. Technologies and targets will change, but a rigorous and demanding process at the FISC should remain.
Congress should prioritize reforms to the FISC that are durable, practical and meet our national commitment to privacy and individual freedom.