There has been much discussion, on the pages of this blog and elsewhere (here, here, and here to name just a few), about the procedural shortcomings of the FISA Court — the lack of any party opposing the government’s position and the secrecy of the court’s decisions. Proposals to fix the court have focused on establishing a special advocate and requiring disclosure of redacted or summarized versions of court rulings.
A new Brennan Center report suggests that the problem with the court goes much further, and that fixing the FISA Court will require fixing FISA itself.
The report begins with the birth of the court, which was created despite lawmakers’ concerns about the fact that it would operate in total secrecy with no adversarial process. Yet these lawmakers were convinced that there were enough safeguards built into the FISA Court to prevent abuses. However, these safeguards were quickly overcome by new developments in technology and the law, as the following excerpt from the report discusses:
At the time of its creation, many lawmakers saw constitutional problems in a court that operated in total secrecy and outside the normal “adversarial” process … . But the majority of Congress was reassured by similarities between FISA Court proceedings and the hearings that take place when the government seeks a search warrant in a criminal investigation. Moreover, the rules governing who could be targeted for “foreign intelligence” purposes were narrow enough to mitigate concerns that the FISA Court process might be used to suppress political dissent in the U.S. – or to avoid the stricter standards that apply in domestic criminal cases.
In the years since then, however, changes in technology and the law have altered the constitutional calculus. Technological advances have revolutionized communications. People are communicating at a scale unimaginable just a few years ago. International phone calls, once difficult and expensive, are now as simple as flipping a light switch, and the Internet provides countless additional means of international communication. Globalization makes such exchanges as necessary as they are easy. As a result of these changes, the amount of information about Americans that the NSA intercepts, even when targeting foreigners overseas, has exploded.
Instead of increasing safeguards for Americans’ privacy as technology advances, the law has evolved in the opposite direction since 9/11. … While surveillance involving Americans previously required individualized court orders, it now happens through massive collection programs … involving no case-by-case judicial review. The pool of permissible targets is no longer limited to foreign powers – such as foreign governments or terrorist groups – and their agents. Furthermore, the government may invoke the FISA Court process even if its primary purpose is to gather evidence for a domestic criminal prosecution rather than to thwart foreign threats.
… [T]hese developments … have had a profound effect on the role exercised by the FISA Court. They have caused the court to veer off course, departing from its traditional role of ensuring that the government has sufficient cause to intercept communications or obtain records in particular cases and instead authorizing broad surveillance programs. It is questionable whether the court’s new role comports with Article III of the Constitution, which mandates that courts must adjudicate concrete disputes rather than issuing advisory opinions on abstract questions. The constitutional infirmity is compounded by the fact that the court generally hears only from the government, while the people whose communications are intercepted have no meaningful opportunity to challenge the surveillance, even after the fact.
Moreover, under current law, the FISA Court does not provide the check on executive action that the Fourth Amendment demands. Interception of communications generally requires the government to obtain a warrant based on probable cause of criminal activity. Although some courts have held that a traditional warrant is not needed to collect foreign intelligence, they have imposed strict limits on the scope of such surveillance and have emphasized the importance of close judicial scrutiny in policing these limits. The FISA Court’s minimal involvement in overseeing programmatic surveillance does not meet these constitutional standards.
Fundamental changes are needed to fix these flaws. Congress should end programmatic surveillance and require the government to obtain judicial approval whenever it seeks to obtain communications or information involving Americans. It should shore up the Article III soundness of the FISA Court by ensuring that the interests of those affected by surveillance are represented in court proceedings, increasing transparency, and facilitating the ability of affected individuals to challenge surveillance programs in regular federal courts. Finally, Congress should address additional Fourth Amendment concerns by narrowing the permissible scope of “foreign intelligence surveillance” and ensuring that it cannot be used as an end-run around the constitutional standards for criminal investigations.