Don’t Save This Court
Aug 5, 2013, Vol. 18, No. 44 • By GARY SCHMITT
Edward Snowden has given the country and the world an unprecedented look into the National Security Agency’s post-9/11 efforts to prevent terrorist attacks. Ignoring the success of those efforts, critics from the left and right have rained down opprobrium on the agency. But the criticism has not been aimed solely at the NSA. Snowden’s leaks have also put a spotlight on the Foreign Intelligence Surveillance Court (FISC) and its role in approving various NSA programs.
The court was established by the Foreign Intelligence Surveillance Act (FISA) of 1978. Its members are federal judges, appointed by the chief justice of the United States for set terms to supervise the executive branch’s electronic intelligence-related surveillance programs. Operating in secret, the court reviews requests from the Justice Department for surveillance warrants intended to collect intelligence related to espionage or terrorism—with the key caveat that the government has to show there is “probable cause” to believe that the surveillance target, if a U.S. person, is an agent of a foreign power or is engaged in terrorism-related activities.
Since 9/11, the court’s writ has expanded to include approving entire surveillance systems, with particular attention to ensuring that procedures are in place to minimize the retention of, and eventually eliminate, information tied to Americans not suspected of being involved in spying or terrorism. Indeed, just this past week, the director of national intelligence made the unprecedented announcement that the court had renewed the government’s authority to collect millions of Americans’ phone records under an NSA program.
Skepticism about the FISC’s role is based mainly on the fact that the percentage of approvals versus requests is extremely high. For some years, FISC judges approved every single request, and since the system’s inception more than three decades ago, the government has had fewer than a dozen of its warrant applications rejected. Critics argue that the judges have failed to provide real scrutiny of the government’s surveillance activities and have become “rubber stamps” for America’s security services.
To address this perceived problem, proposals are now being floated by legal scholars, members of Congress, and even a former FISC judge to add to the process security-cleared lawyers, whose task it would be to argue against the government’s request, providing something akin to the adversarial aspect of a traditional court proceeding. But this would be to double down on a legal regime that shouldn’t exist in the first place and is, at a minimum, constitutionally dubious.
First, this additional requirement would make a complex system more complex. Moreover, it can’t fix the fundamental reputational problem facing the court: FISC proceedings would still be secret, and its adversarial counsels would have to be pre-cleared and pre-approved by the very government they were intended to challenge.
The reason the court has such a high rate of warrant approvals is almost certainly that the layer of government lawyering required to bring a request forward is already extensive, and the evidentiary requirements for a request itself are such that most FISC approvals are easily decided. Nevertheless, disproving the “rubber stamp” claim is practically impossible given the classification that necessarily shrouds the court.
As Chief Justice John Roberts noted in his 2005 confirmation hearing, the Foreign Intelligence Surveillance Court is “not what we usually think of when we think of a court,” lacking “the glare of publicity” in which “lawyers argue” and “the judges explain their decision to the public.” While Roberts’s language perhaps brushes too quickly by the ex parte decisions made by judges in granting, for example, search warrants in pending criminal cases, his larger point remains, in that these latter types of court orders are typically interim in nature, and the individuals affected must at some point be given the opportunity to challenge the order itself.
Moreover, because of advances in communications technology and the need to prevent terrorist attacks, FISC judges are now being asked to sign off on the kind of broad surveillance programs Snowden has made public. It’s certainly a stretch to say this is a traditional judicial function. And, as we’ve seen this past week with the close vote in the House on Rep. Justin Amash’s measure to shut down NSA’s metadata collection effort, the fact that the court had approved the program hardly made it any more legitimate in the eyes of its Republican and Democratic opponents.
Prior to the 1970s, the constitutional rule of thumb was that collecting intelligence was an executive prerogative, and Fourth Amendment concerns only came into play when an individual’s life or liberty was in jeopardy as an investigation turned to possible criminal prosecution. But, as the revelations and investigations of the 1970s showed, it was a discretion presidents had at times abused. Even so, as the surveillance court itself recognized in a 2002 opinion, all previous federal appellate courts have “held that the President did have an inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
But if Congress were to repeal FISA and remove the court from overseeing the government’s surveillance programs, what oversight would exist on the president’s exercise of this power? The answer, of course, is Congress—specifically, the intelligence committees of the House and the Senate.
The model for this more constitutionally appropriate system is the one that now governs covert action. Under the law passed in 1974, the president’s decision to engage in covert action remains his alone to make, but he must notify the two committees in writing each time he undertakes a new covert program and provide Congress with a description and the scope of each operation. If a similar regime were set up to handle intelligence surveillance, the executive would not have an obligation to provide specific names of targeted individuals or wait until the committees approved a particular surveillance, but it would have to keep committee members fully apprised of its programs, giving them sufficient information to judge their effectiveness, amend them as necessary, or, in the case of extreme malfeasance, cut funds altogether.
The court’s current role under FISA allows the executive branch to hide behind judges’ robes in the exercise of its power and, in turn, weakens the incentive Congress has to weigh in on these matters. It would be constitutionally healthier if the responsibility for collecting intelligence and overseeing it were handled by the branches best suited to doing so.
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