It’s time to fix the FISA Court (the way Congress intended)

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This photo provided by The Guardian Newspaper in London shows Edward Snowden, who worked as a contract employee at the National Security Agency, on Sunday,...
This photo provided by The Guardian Newspaper in London shows Edward Snowden, who worked as a contract employee at the National Security Agency, on Sunday,...
The Guardian/AP Photo

Whatever else might be said about the disclosures by Edward Snowden, one thing that this week’s Senate Judiciary Committee hearing makes clear is that we now know a lot more about the “FISA Court”—the highly secretive, 11-judge body established by Congress in the Foreign Intelligence Surveillance Act of 1978. The court oversees governmental surveillance activities authorized by that statute and its subsequent amendments. And Since Snowden’s revelations about the work of the court and the domestic surveillance it has authorized, the FISA Court has become an increasingly central focus of critics.

It’s now clear that the FISA Court has been instrumental in signing off on controversial governmental surveillance programs with little-to-no input from anyone outside of the Executive Branch. Even two of the court’s former judges have now made candid public statements weighing in on the very real costs of such a one-sided, secrecy-laden judicial process.

All this has led to calls for reforming how the intelligence community actually uses its surveillance authorities, but increasingly, for also reforming the court. These proposals have run the gamut, but the most common refrains have been to provide for a more adversarial process before the FISA Court; and to make it easier for outside parties to challenge governmental surveillance programs to which they might be subjected, whether in the FISA Court or elsewhere.

Critics of these reforms have argued that they’re fundamentally incompatible with FISA—a statute designed to allow the government to operate in secrecy and without external oversight entirely because of the sensitive subject-matter at the heart of FISA-based surveillance. At first blush, it’s hard to disagree: both adversarial process and civil liability seem deeply incompatible with secretly conducting surveillance of our enemies. But there is an amusing irony undercutting both of these criticisms. FISA itself already provides for such mechanisms; the proposals are merely designed to improve upon what’s already there—differences in degree, rather than kind. Simply put, the core idea is to use FISA itself as the model on which to reform the FISA Court, to better empower it to serve as a check on the Executive Branch.

Take the debate over adding more adversarial process to FISA proceedings, for example. When FISA was originally enacted in 1978, it was modeled on what’s known as “Title III” in the ordinary law enforcement context—a process pursuant to which the government is allowed to obtain search warrants based on ex parte, non-adversarial proceedings before a judge.

But in the Title III context, the non-adversarial process comes at the beginning of what is usually an adversarial criminal proceeding, one in which the subject of the search warrant typically has a chance after the fact to object to the warrant and to move to suppress evidence obtained pursuant to its execution. The same is not usually true in the FISA context—especially since Congress amended FISA in 2007 and 2008 to allow for more systematic surveillance, i.e. surveillance that is not based on individualized determinations of probable cause, but rather periodic “certifications” that broader-scale surveillance programs are comporting with various procedural and substantive safeguards.

That’s why, when Congress so amended FISA, it added adversarial process—authorizing electronic communications service providers (ISPs; cell-phone carriers; etc.) who receive requests for assistance under these provisions of the FISA Amendments Act to challenge such requests through adversarial proceedings before the FISA Court. Indeed, such a challenge is what produced the FISA appeals court’s important 2008 decision in the “In re Directives” case, which we now know was brought by Yahoo!.

Thus, Congress has already created a process where security-cleared private counsel can participate as adversaries against the government before the FISA Court—and appeal adverse decisions to the FISA Court of Review–and, if necessary, the U.S. Supreme Court. And so far as we can tell, the sky has not fallen. The shortcomings with this approach relate almost entirely to its modest scope: only a service provider is allowed to participate in such proceedings—not a representative of those whose communications are actually being obtained as a result.

The same can be said for allowing outside parties to bring civil suits challenging governmental surveillance under FISA. When Congress initially passed FISA in 1978, it included an express damages provision, authorizing civil suits by any “aggrieved person”–that is, anyone who can’t legally be targeted under the statute but who is nevertheless subjected to surveillance under it. Congress thereby suggested both that it wanted outside civil litigation as a means of containing FISA’s scope and that it expected such litigation to occur.

The Supreme Court’s decision this February in Clapper v. Amnesty International has made it a lot more difficult for individuals to prove that they are “aggrieved,” and so have “standing” to challenge secret surveillance programs. But as I’ve previously suggested elsewhere, it seems clear that Congress could still make it much easier for such suits to go forward, if it wanted to do so. Again, the precedent exists; it’s just a question of adapting and expanding it to account for subsequent developments.

One of the points that this summer’s events have driven home is how much FISA has expanded since its 1978 enactment—from a model based upon individualized suspicion and probable cause to one based upon wholesale communications interception and systematic data-mining. Reasonable people can and will disagree about whether such an expansion has been necessary and/or appropriate. But either way, Congress has always understood the significance of checking the expansiveness of this unique regime through a host of safeguards—including congressional and judicial oversight; through a more adversarial process within the FISA Court; as well as civil liability for damages for those whose communications are wrongfully intercepted under the statute. Reforms centered on bolstering these hallmarks of the FISA regime are therefore not only not incompatible with FISA; they are in fact an effort to restore the balance that Congress sought so carefully to strike 35 years ago.

It's time to fix the FISA Court (the way Congress intended)

Updated