By Kyle C. Barry
AFJ Legislative Counsel
Efforts to reform the Foreign Intelligence Surveillance Court (FISA Court) got a major boost last week when the White House released an independent report that advises significant structural and procedural changes to the FISA Court. Among other recommendations, the report argues that FISA Court reforms are necessary to ensure fair process, and to strike a better balance between national security interests and fundamental civil liberties.
In response to the disclosures of former NSA contractor Edward Snowden, President Obama convened an independent “Review Group” to fully evaluate our national surveillance programs. The Review Group’s report, made public last Wednesday, offers 300 pages of sweeping reforms and broad recommendations that touch all aspects of our foreign intelligence gathering activities. Included are suggested reforms to the FISA Court, the judicial body tasked with approving electronic surveillance applications made by the executive branch.
The proposed changes to the FISA Court address two problems that Alliance for Justice identified in a report, Justice in the Surveillance State, issued in August.
First, FISA Court judges – who are all federal district court judges, already nominated by the President and confirmed by the Senate – are all selected by a single person, the Chief Justice of the United States. It should go without saying that such centralized, unchecked authority will diminish the diversity of viewpoints necessary to making fair and balanced decisions. Under Chief Justice Roberts, this selection process has led to a Court with ten judges first appointed to the bench by Republican presidents, and only one judge appointed by a Democratic president. The Review Group correctly recognized the danger inherent in this approach, explaining that,
[a]lthough the role of a judge is to follow the law and not to make political judgments, Republican-appointed and Democratic-appointed judges sometimes have divergent views, including on issues involving privacy, civil liberties, and claims of national security. There is therefore a legitimate reason for concern if, as is now the case, the judges on the FISA Court turn out to come disproportionately from either Republican or Democratic appointees.
The Review Group further noted that “[t]here are several ways to deal with this concern,” and suggested that appointment authority be spread among the other Supreme Court justices.
The second problem is that the FISA Court only hears one side of every case. All proceedings before the FISA Court are ex parte, meaning that only the government – and neither the target of surveillance, nor the party asked to hand over information – is allowed to present argument. The Review Group expressed skepticism of any judicial process that abandons our long adherence to the adversarial system. “The adversary system,” the report explains, “is an engine of truth. It is built on the assumption that judges are in a better position to find the right answer on questions of law and fact when they hear competing views.”
This is true of the FISA Court now more than ever because its decision making authority has expanded in recent years. Rather than making narrow factual assessments to simply grant or deny surveillance applications, the FISA Court has been presented with complex issues of statutory and constitutional law. The Review Group highlights the NSA’s bulk data collection as a primary example:
A good example is the question whether section 215 [of the PATRIOT Act] authorized the bulk telephony meta-data program. That question posed serious and difficult questions of statutory and constitutional interpretation about which reasonable lawyers and judges could certainly differ. On such a question, an adversary presentation of the competing arguments is likely to result in a better decision. Hearing only the government’s side of the question leaves the judge without a researched and informed presentation of an opposing view.
The Review Group proposes the creation of a “Public Advocate” to represent the interests of those whose privacy rights might be at stake in FISA Court proceedings. The Advocate could be invited to participate by a FISA Court judge, or could appear on her own motion.
The Review Group report is an important step toward a better functioning FISA Court, one that affords fair process and better protects the privacy rights of all Americans. But many of the Review Group’s recommendations are broad suggestions that leave for Congress and the President the job of implementing practical solutions. Currently, there are two bills pending in the House and Senate that would address the flaws in FISA Court raised by AFJ, the Review Group, and others. The FISA Court Reform Act of 2013 would create the Office of the Special Advocate to argue on behalf of privacy interests, and appeal decisions that favor the government. It would also mandate increased transparency and disclosures of FISA Court opinions. The FISA Judge Selection Reform Act would increase the number of FISA Court judges from 11 to 13, and spread the authority to select judges among the chief judges for our federal courts of appeals. Each of these bills has bipartisan support, and Congress should act on them quickly when it returns to work in January.
Of course, fixing the FISA Court is not sufficient to address all of the problems with the NSA’s expansive surveillance programs, some of which, one federal judge recently observed, are “Orwellian” in nature. Legislators and the White House should also be working on comprehensive substantive reforms.
The momentum toward these changes, both to the FISA Court and more broadly, has been growing, and the findings of the independent Review Group should be a call to act now.