When Chief Justice John G. Roberts Jr. was asked about the Foreign Intelligence Surveillance Court during his confirmation hearings, he replied: "It's not what we usually think of when we think of a court." And he was absolutely right.
As Roberts noted, most Americans think of a court as open to the public, where "lawyers argue, and it's subject to the glare of publicity. And the judges explain their decision to the public and they can examine them." But the federal FISA court — created by Congress in 1978 to rule on requests for surveillance orders against agents in the U.S. — meets entirely in secret and seldom makes its rulings public.
Though most Americans have little idea what it does, the FISA court is extremely influential. Thanks to a leak by former National Security Agency contractor Edward Snowden, we now know that it was the FISA court that decided, in a secret opinion, that the telephone records of millions of Americans could be acquired and stored by the government "on an ongoing daily basis." It is also the FISA court that has decided, in recent years, whether the NSA's scooping up of electronic communications abroad adequately protects the privacy of Americans whose communications are "incidentally" collected. Snowden revealed that such communications are monitored on a massive basis through a program known as PRISM.
The differences with other courts don't stop there. The 11 judges on the FISA court are chosen not by the president with confirmation by the Senate but by the chief justice from a pool of federal judges. That means that they are never questioned by the Senate about their views on the court's special role, or on their approach to reconciling individual privacy protected by the 4th Amendment with the demands of national security.
One final difference: The FISA court and its appellate division, the Foreign Intelligence Surveillance Court of Review, typically hear from only one side: a lawyer for the Justice Department. For obvious reasons, those who are to be surveilled have no opportunity to offer a counter-argument.
Because of the sensitive nature of foreign intelligence-gathering, the FISA court can never be as public or adversarial as other federal courts. But to the extent that the court is making broad interpretations of federal law and the Constitution, Congress should take steps to remove the veil of secrecy.
Concerns about the FISA court are not new. It was widely known even before Snowden's leaks that the government used a provision of the USA Patriot Act to seek FISA court orders for phone records and other data "relevant to an authorized investigation" into international terrorism or foreign intelligence activities. Critics complained that the "relevance" standard was too loose and could be used to obtain the records of individuals who weren't suspected of involvement in terrorism or espionage.
But those concerns have gained traction in Congress because of recent revelations that the court has endorsed electronic surveillance far more extensive and intrusive than most Americans (and some members of Congress) ever imagined. The breathtaking breadth of the acquisition of telephone records, for instance, wasn't clear until Snowden provided the Guardian with a copy of a FISA court order directing a Verizon subsidiary to provide the government with "telephony metadata" — information about the sources, destinations and duration of all of its subscribers' calls.
The Wall Street Journal has reported that such sweeping orders were made possible by the FISA court's expansive reinterpretation of the term "relevant" to encompass not just material useful in a pending investigation but a huge database that could be mined at a later time. Apparently the court also obliged the government by ruling that electronic surveillance could take place under an exception to the 4th Amendment known as the "special needs" doctrine, announced by the Supreme Court in a case involving drug searches of railway workers. The New York Times reported that the doctrine was invoked to gain access to an email attachment that investigators ordinarily would have needed a warrant to read.
These legal issues — the reach of the Patriot Act and the application of the "special needs" doctrine — have enormous implications for the privacy of Americans. They should be debated by judges in public and ultimately resolved by the Supreme Court. Now that the FISA court order in the Verizon case is a matter of public knowledge, the Electronic Privacy Information Center has asked the high court to reverse the order. But even if the court does intervene in that case, Congress must also act.
First, it should adopt a bipartisan proposal in the Senate that would require the attorney general to declassify significant
FISA court opinions, or at least provide summaries, except in the most sensitive cases. Only rarely have opinions of the FISA tribunals been made public, supposedly because of the intertwining of legal theory and classified information. But it should be possible to redact the opinions so that lawyers and the public can evaluate their reasoning.
As for the lack of an adversary process, professor Geoffrey R. Stone of the University of Chicago Law School has proposed that when the government seeks an order from the FISA court, an independent government lawyer with a security clearance could be assigned to oppose the request. That idea ought to be explored, at least in cases in which a ruling raised a novel legal question. The same lawyer could then contest an order and its rationale on appeal, all the way to the Supreme Court if a significant constitutional issue were involved.
Congress also needs to revisit the composition of the FISA court in light of the extensive surveillance it is called on to oversee. Instead of having the chief justice assign federal district judges to the court on a temporary basis, FISA judges should be chosen specifically for this assignment by the president and confirmed by the Senate. That's the case with the U.S. Court of Appeals for the Federal Circuit, which hears cases involving patents, intellectual property and international trade.
The FISA court is only one item on what should be a lengthy agenda for Congress as it recalibrates the relationship between privacy and national security in light of recent revelations, but it's an important one. Ultimately, it should be as much like other courts as possible.