July 17, 2013

The Simmering Storm Over America’s Secret Surveillance Court

By Gordon Schnell

Among the many revelations emanating from the saga of Edward Snowden, America’s most notorious whistleblower, is that a secret court with virtually no oversight is making our national security decisions on government surveillance.  It is the so-called FISA court that Congress established in 1978 under the Foreign Intelligence Surveillance Act.  It was designed to rein in what many considered to be a government acting out of bounds in its electronic snooping.  But rather than serve as a proper check on this surveillance activity, many believe the court merely provides a rubber-stamp of the government’s surveillance requests.  There are several reasons why.

First is the court’s composition.  There are eleven judges, drawn from the ranks of the federal district courts, who serve on rotating shifts over a seven-year term.  They are selected by the Chief Justice of the Supreme Court and not subject to review or confirmation by Congress or any other governmental branch or office.  Chief Justice Roberts has appointed each of the FISA judges currently serving.  Unsurprisingly, all but one of them is a Republican.

Second is the court’s process.  The hearings are held in secret and presided over by a single FISA judge.  Only the government is permitted to present its case as to why a surveillance warrant is needed.  There is no adversarial procedure; no one to represent the interests of those the government is seeking to monitor.  The judge’s granting of the warrant cannot be appealed or even reviewed by the public.  It remains for all practical purposes off-limits even to Congress due to the classified nature of the FISA rulings.

Third is the court’s track record.  For the most recent year, it did not deny a single surveillance request by the government.  As reflected in the Attorney General’s 2012 annual report to Congress, this included 1,856 applications to conduct electronic surveillance and/or physical searches for foreign intelligence purposes.  And it included 212 applications for access to certain business records such as the Verizon warrant, disclosed by Mr. Snowden, for metadata on the phone calls of millions of its customers.

According to a Reuters analysis, the government’s essentially undefeated record extends back to 2001.  Since then, the FISA judges have approved roughly 21,000 requests for surveillance and property search warrants and denied only 10 of them.  Since 2007, they have approved 532 “business record” requests and denied none of them.  It is the government’s near-perfect record in this arena that has been the greatest cause for concern.  As Bloomberg so pointedly put it in a recent editorial, “when the government . . . throws strikes by the thousands without ever once missing home plate, one suspects the umpire is too deeply compromised to properly call the game.”

Fourth is the ever-expanding surveillance reach the court seems to be sanctioning in its decisions.   Under the Patriot Act, the FBI can require a business to turn over a wide swathe of its records as long as the agency can demonstrate the information is “relevant” to an authorized terrorist or foreign intelligence investigation.  As the Wall Street Journal recently reported, over the past decade, the FISA court has broadened the relevance standard to cover virtually everything.  It goes well beyond the scope of any subpoena used in a criminal proceeding.  And it has allowed the government to gain access to the phone and email records of millions of Americans such as the FISA court order for Verizon that Mr. Snowden revealed.

It is for these reasons that many are calling for changes to, or at least greater accountability for, the FISA court system.  One of the loudest critics appears to be Rep. James Sensenbrenner (R-Wis.), one of the principal authors of the Patriot Act.  In a recent letter to Attorney General Eric Holder, he expressed his deep concern that the Verizon search warrant is just the latest example of the government going way beyond what was contemplated under the Act:

I am extremely disturbed by what appears to be an overbroad interpretation of the Act.  . . .  These reports [of the Verizon search warrant] are deeply concerning and raise questions about whether our constitutional rights are secure.  . . .  How could the phone records of so many innocent Americans be relevant to an authorized investigation as required by the Act?

Others are calling for actual legislative changes that would directly tackle some of the more troubling aspects of the FISA court.  Rep. Steven Cohen (D-Tenn.), for example, has proposed the FISA Court Accountability Act.  It would, among other things, bring Congress into the FISA process by including it in the selection of judges and providing the House and Senate Intelligence Committees with full copies of FISA court rulings.  So far, Rep. Cohen has been unable to find any cosponsors for his bill.

Even former FISA judges are speaking out against the current system.  At a recent hearing of the federal oversight board, one former judge, James Robertson, complained about the lack of adversarial proceedings in the court.  He denied that the court merely rubber-stamps the government’s requests and claimed it was scrupulous in pushing back against overbroad warrants.  But he expressed concern that the court was going too far in its recent rulings on the scope of the government’s surveillance authority and that the system lacked any kind of proper check on the court’s decisions.  He warned, “Anyone who has been a judge will tell you a judge needs to hear both sides of a case.”

For its part, the Executive Branch is holding strong on its need for the expanded reach of its surveillance requests.  And it stresses that only the metadata is collected, not any of the substance of the calls or messages.  To access this more specific and significantly more private content, a much more demanding threshold must be met.  In any event, Mr. Snowden has shined a rather bright spotlight on this secret surveillance court, one that will likely persist for the immediate future.

The increased scrutiny is already having a real effect on the court.  Just two days ago it issued an order requiring the government to declassify and release what it reasonably can of the court’s previous decision sanctioning the broad collection of data from Yahoo.  Perhaps this unprecedented decision is the first of many to come that will take much of the mystery out of this secret court’s goings on.  That is obviously what Mr. Snowden was hoping to accomplish.  Whether it will ultimately inure to the benefit of most Americans is the real question that remains to be seen.

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