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Summary:

Many of America’s controversial surveillance activities are “legal” because they are approved by a secret court. Critics, including its own judges, have called for reform – but the problem won’t be fixed until the court adopts some basic legal traditions.

Dungeon, sunlight, court, medieval
photo: Ensuper

One of the great ironies of America’s ongoing surveillance scandal is that a court designed to protect citizens from the government has emboldened the spy services instead. The Foreign Intelligence Surveillance Court was created in 1978 to check executive overreach, but it has since signed off on nearly every spy request placed before it — in doing so, it has “become almost a parallel Supreme Court” with its own “secret body of law” in the words of the New York Times.

In the last month, however, the court has been the subject of unprecedented scrutiny by the media and Congress, and this week a second former judge of the court called for reform. The attention is long overdue but still doesn’t solve the court’s most troubling aspect: the secrecy baked into its every operation.

Sunlight on the secret court

Since the New York Times called out the expanding activities of the FISA court in early July, politicians have called for reforms — such as changing the way judges are appointed so as to avoid groupthink. Meanwhile, technology companies like Microsoft and Google have asked the court to acknowledge they have a First Amendment right to disclose information about the number of surveillance requests they receive.

There is a lot at stake because the court is charged with issuing warrants that give spy agencies permission to listen to Americans’ Sunlight, sun, forestphone and email conversations if the agencies think there’s a chance that the American in question is communicating with a terror suspect outside the country.

The problem, however, is that the spy agencies are not asking for individual warrants, but large batches of them at once. And the FISA court has been rubber-stamping nearly all of these requests — without leaving any public record of when or why it is doing so.

Recently, though, there are signs that the court, which consists of judges appointed by the Chief Justice of the Supreme Court, has felt pressure to start explaining what it’s up to. This month, it agreed to take the rare step of publishing a secret decision from 2008. (The decision, in which Yahoo lost a challenge to block surveillance requests, must first be declassified by the White House; a redacted version will appear months from now.)

And this week, a former FISA Court judge published an op-ed titled “A Better Secret Court” in which he argued that the government should appoint lawyers with security clearance to argue the side of the people the government wants to spy on (the people themselves can’t be made aware of the proceedings since that might compromise the investigations).

Such reforms could better protect civil liberties but they don’t address what’s most wrong the FISA court.

The trouble with secret courts

Even non-lawyers are familiar with two basic elements of how courts work in a democracy: the court publishes its decision and the loser has a way to appeal it. The FISC court, however, doesn’t provide really provide either of these basic planks of justice.

Only a handful of the FISA court’s many rulings over the past few decades have seen the light of day, since it is the court itself that decides whether to release them. And the appeals process is a bit of a mystery — even to lawyers familiar with the court.

Mark Rumold is an attorney with the Electronic Frontier Foundation, which is suing the Justice Department to release FISA court decisions. In a phone interview, Rumold said that the FISA Court’s internal rules permit appeals to other FISA court judges — but it’s unclear how (or if) the losing party can call for an outside review by an ordinary appeals court or the Supreme Court.

While the FISA court’s closed and secret operations are understandable from a national security perspective — the government can’t be expected to discuss intelligence targets and seek wiretaps under the glare of CNN — the process is still obnoxious. Part of the reason why the FISA Court so rankles legal scholars and ordinary Americans is that the English-speaking world got rid of secret courts long ago, and for good reason.

In the early 17th Century, the British monarchy sought an end run around ordinary common law courts by turning to a judicial Star Chamberforum of its own, the Court of Star Chamber. Here’s how one legal dictionary defines its activities (our emphasis):

During this time the court met in secret, extracting evidence by torturing witnesses and handing out punishments that included mutilation, life imprisonment, and enormous fines. It turned equity’s traditionally broad discretion into a complete disregard for the law. The Star Chamber sometimes acted on mere rumors in order to suppress opposition to the king.

Parliament eventually abolished the Star Chamber in 1641 and, since then, there has been a presumption in common law that “justice should be seen.” While the FISA Court has finally put a tiny part of its docket online, it must do much more.

Security without secrecy

In light of the general unease over government surveillance, it’s easy to regard the FISA court as sinister but that’s not entirely fair. The judges who sit on it are not medieval brutes clutching tongs, but men and women from fine schools with highly accomplished legal resumes. Like most legal professionals who take their jobs seriously, they likely resent being regarded as a rubber stamp and believe in the Constitution.

But still the court’s secret nature just makes it feel sinister even to many lawyers. This isn’t a good situation for confidence in the law or for civil liberties.

Fortunately, it would not take much to fix the situation. Congress can write rules to require the court’s decisions to be declassified on a regular basis. It can also change the original law that created the court to confirm that it is not an island unto itself, but part of the rest of America’s judiciary and subject to oversight by the Supreme Court.

A coalition of liberal Democrats and libertarian Republicans have already formed an influential alliance to challenge the country’s surveillance practices. It would be easy for them to shift their attention to the FISA Court and support people like Rep. Steven Cohen (D-Tenn) who are already trying to reform it.

Finally, in the short term, the FISA Court can take the situation into its own hands and start publishing its decisions — especially the ones that explain the powers of the government and the court’s own role in overseeing it. This transparency is essential to ensure that America, as it expands its security operations, doesn’t abandon the basic legal protections that are the base of every free society.

(Image by Ensuper via Shutterstock)

  1. Gareth Stewart Sunday, July 28, 2013

    True enough. But you might first have forcefully highlighted that the court isn’t a constitutionally required creature. The court also isn’t a creature of self-generated rules but the product of a congressional statute, and the court likely doesn’t continue existing because of inborn zeal of the judges to continue in business. You also recognize but do not forcefully develop that politicians created this court several centuries after the well-documented abuses of the Star Chamber, and in reality, the court continues to exist with the blessing of politicians. Why is this?

    You further note that the court was “created in 1978 to check executive overreach,” and that’s undoubtedly how it was paraded to the public. But just as well, though, the court may initially have been and apparently now is the artifice through which politicians might obtain immunity from the political consequences of their intelligence-gathering activities (or purported intelligence gathering activities). If the reports on the court’s modus operandi are correct, then I’d say the court’s very existence implicates political accountability.

    This diffusing of “executive-type” decisions – namely, intelligence gathering activities – to an unelected judicial branch (here, the court) appears to be a very convenient cover for politicians to avoid or deflect the wrath of the electorate over decisions made by politicians and within the control of politicians. At the same time, it embroils the judiciary in matters over which the judiciary has no native expertise because judges have no way of independently validating, and inevitably would therefore end up not second-guessing, the executive’s intelligence gathering requests to the court.

    As to intelligence gathering requests to the court, it is apparent that the information the judge has is only the information the executive earlier presented to the court. Now, elementary self-service does predict that the executive wouldn’t present the judge with information that undermines the intelligence gathering request the executive has asked the judge to consider and approve. So is there any surprise that requests are essentially rubber-stamped (again, as reported)?

    It is suggested, therefore, that the real problem isn’t who is appointing the court’s judges. Journalistic gushes that the current appointer (C.J. Roberts, according to reports) should be changed or that political counting should apply – so “as to avoid groupthink” – combine ignorance or willful blindness with both slander and impertinence against the court’s judges and C.J. Roberts.

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    1. Your final paragraph counts nicely as non sequitur. All of that lovely analysis leading to clearing the good name of a collaborator? Or are we to think Roberts, et all, waltzed into the roles they play as unknowing academics?

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