Foreign Intelligence Surveillance Court (FISA) Courts

By: Andrew Mackanin

Unless you have been living under a rock, you could not have escaped the media coverage of Edward Snowden.  The saga that began months ago has now come to a not-so-certain end with Snowden’s temporary asylum in Russia. The aftermath of his “successes” will be analyzed, scrutinized, and debated a great deal longer then the time he was on the run. The United States is left with questions about what to do in regards to intelligence gathering.  The first step is a serious look at the Foreign Intelligence Surveillance Court or FISA Court.

The FISA court consists of eleven judges appointed by the Chief Justice of the Supreme Court. Originally the court was created to review every wiretapping order on a case-by-case basis. Ever since the Patriot Act, the court’s role has greatly expanded to serve as judicial oversight to intelligence operations.  Now, the wholesale collection of any metadata that is considered “relevant” to fighting terrorism is approved.  One of the best examples of the loose interpretation of the word relevant was the collection of phone-tracing data from Verizon Customers.

The FISA Court acts as a “parallel Supreme Court” because it serves as the highest court for surveillance issues. There is a dynamic that exists between the executive branch, which brings intelligence gathering operations to the court for review, and the judicial branch that reviews and approves the orders. The vast majority of requests that are brought to the FISA court are approved. The Court does not work on the adversarial model that we are accustomed to in our judicial system. It is set up similar to a Grand Jury the court only hears the argument from the government’s prospective without an opposing view presented. This skews the process in the government’s favor. The crucial dissenting voice against the surveillance practices is absent from the proceedings.

The deliberations are done behind closed doors without a public opinion being issued. A body of common law is being created in this area that remains secret. For example, the “special needs” doctrine has been used by the FISA court to justify the wholesale collection of information.  The doctrine was intended to narrowly apply to allow minimal intrusion into personal privacy to fight overriding public danger. It has previously justified intrusions such as DUI checkpoints, but now can be used to collect your entire phone record.  The difference between these two uses is drastic.

Recently, an attempt to defund the NSA was led by Congressmen Amash (R-Mich.). The amendment which was attached to the Department of Defense Appropriations Act was narrowly defeated (205-217). The vote revealed unlikely bedfellows; 94 republicans and 111 democrats voted to defund the program. The wings of each party are rallying against the program, with members of the “establishment,” such as Speaker John Boehner and President Obama supporting the program.

This defeat of the drastic measure does not mean that those who voted to keep the program agree with it entirely.  Certain reforms have been proposed to retain the program, but with stricter parameters. One reform suggested by Senator Blumenthal, would take away the amount of power the Chief Justice has. The proposal would allow each of the Chief Judges in the federal circuits to appoint one judge for the FISA court. The Obama administration has still supported the programs as they stand, but agrees new measures are needed. The proposal from the Obama administration would put a privacy advocate in the room when the government makes proposals to the court. The administration is also trying to add revisions to the Patriot Act that would increase oversight and implement constraints, but the administration has not been specific in outlining those plans.

There are proponents of the program who believe reform is unnecessary and this entire situation is blown out of proportion. In the Los Angeles Times, Andrew Liepman, the former deputy director of the National Counterterrorism Center, argues that effective intelligence gathering is necessary to combat the threat of terrorism. He puts the limitations of the program into perspective, pointing to the fact that 100 billion emails are sent a day, and that the NSA is not interested in what information you send to your family, but only the information Al Qaeda is sending.  Unfortunately, Liepman does not point to specific instances of when the program was successful. He simply asks us to trust that the program is not only effective, but also that our information is protected by internal procedures. This request requires us to trust Liepman’s word, which is not enough for a solid foundation

This issue will soon be pushed to the backburner when Congress reconvenes this fall because larger issues will be in question such as dealing with the sequester.  Hopefully this issue will not be lost in the noise of the budget.  I don’t believe this program is compliant with the legal construction of the 4th amendment. The reforms suggested by the Obama Administration are the best solution and compromise presented currently.  It will allow a third-party to be present in front of the FISA court with our privacy interests in mind. However, the administration’s reforms cannot stop at the privacy advocate. The proposal to increase oversight is a necessary second step to protect privacy. The more eyes and ears that are privy to the requests will help prevent abuse. That is not to say that complete transparency is necessary because national security is still of paramount importance and in order to effectively guard against the threat of terrorism, there must be successful intelligence gathering.

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