In his speech today, President Obama addressed one of the key problems with the Foreign Intelligence Surveillance Court (“FISA Court”) highlighted in AFJ’s report Justice in the Surveillance State: The lack of a true adversarial process.  But it’s not clear what he intends to do about it.


Chief Justice John Roberts appoints all of the judges on the FISA Court

Chief Justice John Roberts appoints all of the judges on the FISA Court

As we noted in the report, as things stand now, the judges hear only the government’s side of the story.  This may help explain why, between 2002 and 2012, the court approved more than 99.93 percent of government requests.  (Before 2002, it approved 100 percent.)

The President’s surveillance “Review Group” recommended creating a public advocate who would challenge government requests to the FISA Court.  The advocate also could appeal adverse decisions.  Right now, since only the government appears before the FISA Court, only the government can appeal if it loses.  Because the government almost never loses, the court designated to hear appeals has not met in four years.

The FISA Court Reform Act  has been introduced in Congress to create such an advocate.

The President addressed the issue, saying:

I am calling on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.

But what does that mean?  Does this mean there will be a lawyer vigorously challenging the government in every case?  Or is it more like an advisory board that will speak on the general issues raised by “significant cases?”  We don’t know.

What we do know is that the FISA Court Reform Act would end the ambiguity and deal effectively with this problem.

The president did not address at all another key concern: Currently all judges on the FISA Court are appointed by the Chief Justice of the United States without the advice and consent of Congress.  As we noted in our report, judges are chosen from among those currently serving on the federal bench.  Chief Justice John Roberts has used this power to name almost exclusively judges initially appointed by Republican presidents, many of whom have a history of working as prosecutors or for the executive branch.

The need for a diverse FISA Court is even more pressing now that it will have more to do.  President Obama plans to require intelligence agencies to get approval from the FISA Court before they can examine the vast amounts of telephone data collected by the National Security Agency – except in what he calls “a true emergency.”  As we noted in a previous post to this blog, another piece of legislation, 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.

The President acknowledged the concerns of AFJ and others, saying:

There are … those who would like to see different changes to the FISA court than the ones I have proposed. … I am open to working with Congress to ensure that we build a broad consensus for how to move forward, and am confident that we can shape an approach that meets our security needs while upholding the civil liberties of every American.

We look forward to continuing dialogue on these issues.