What is the Foreign Intelligence Surveillance Court?
The Foreign Intelligence Surveillance Court (FISC), sometimes referred to as the FISA court, was established in 1978 after the passing of the Foreign Intelligence Surveillance Act. It is located in Washington D.C. and is comprised of eleven district court judges, each appointed by the Chief Justice, and they serve on the court for seven year terms. The court also has a three judge panel that hears appeals, called a Court of Review. According to the FISC's website, "...the Court entertains applications submitted by the United States Government for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes". Check out the official website here. The court remains closed "..due to the need to protect classified national security information..." and operates out of an undisclosed building location.
The FISC is authorized to approve four
different types of surveillance: electronic surveillance, physical searches,
pen registers/trap and trace surveillance, and the use of orders compelling the
production of tangible things. The government must apply to the court and
furnish probable cause for surveillance. For a more in-depth overview, read
through this website.
Criticism/Support
What's all the fuss about then? There are
many complaints about the FISA court. A major point of concern stems from the sentiment that the FISC is simply a "rubber stamp" for the government.
In 2012, there were 1,856 applications to the court
and none were denied although 40 applications underwent some form of
modification. There is a concern that the FISC gives blanket approval in all
cases rather than granting permission to access data in individual cases. To
give a broader scope, since 2008 8,000 applications were submitted
and only two were denied. However, some call for a detailed look at
applications to the FISC. Stanford Law Review argues "...we should care
about the substance of what the court approves, not the frequency with which it
does so". (Check out the website here, they make a convincing
argument).
Reviewing the content of what the FISA
court approves is difficult. Hearings are closed and court opinions are not
often released and, if made public, they are often heavily redacted. Each case is
presented ex-parte , meaning that only the government's side of the case is
presented. Such a lack of an adversarial process is concerning to many,
arguing that the "...court is not required to look behind
the assertions made in the certification". Some worry that the FISA
court's current lack of public accountability and transparency creates a
pseudo-Supreme Court, giving the power to reinterpret the Constitution. The
FISC is hesitant about making the court more transparent, citing national
security as a concern. Former FISC presiding judge, Reggie B. Walton, admitted
there were benefits to making decisions more public but "serious obstacles" stood in the
way of doing so, due to the classified nature of court proceedings. There are
also complaints about how FISA court judges are appointed. The Foreign Intelligence Surveillance Act courts are the only
active Article III courts without full-time judges directly appointed by the
President., creating unease as to power placed on the Chief Justice to
unilaterally appoint judges.
On the other hand, some argue that secrecy
is necessary to protect the safety of Americans and fight the War on Terror.
There is a worry that releasing information to the public or hindering the
court's efficiency would diminish the government's ability to protect its
citizens from outside threats. However, public opinion demands for court
reform.
Room for Reform
A myriad of reforms have been proposed over time but as of June 2015, only two reforms have been adopted. The FISC now mandates
that court opinions that make a "significant interpretation" of the
law must be made public although these reports may be redacted. There are also
five public advocates that will step inside the court to intercede on the
public's behalf, creating a more adversarial process. More information on the
advocates can be found here.
Other proposed reforms include eliminating
the ex-parte process all together and creating an oversight board to increase
transparency about court proceedings. (Check out the class readings here and here.) Others have proposed mandating that the
court sit en banc to
create a wider pool of opinions before approving an application or mandating amicus curiae be heard in addition to
hearing from the public advocates already allowed in the court, helping to
increase the adversarial process. I
recommend reading the report found here-- it's a
bit long but wholly comprehensive and informative. Some believe the FISC should
update its statues to reflect current technological developments, citing that
the court was created in 1978, long before the rise of gadgets like the iPhone
existed. Others believe the real problem lies with data collection itself and
call for an end to programmatic surveillance programs. This website makes
a convincing point to that end. Some suggest too much power is given to
the Chief Justice as he individually appoints the judges and that, given the
nature of the FISA court, judges ought to obtain Congressional approval before
being appointed.
Discussion
Personally, I believe the adopted reforms are a step in the right
direction. The public advocates help to represent the general citizenry in the closed
court and mandating that the FISC make “significant” decisions public helps
increase transparency. That being said, I would like to see more changes made.
In an ideal world, the FISA court would be completely transparent and the
government would have no secrets. However, given recent terror
attacks, I don’t see that happening in the near future and as long as terrorism
continues the FISC will remain closed. As opposed as I am to government secrecy
I do understand it is necessary to prevent terrorist attacks and monitor terror
threats. I would like to see an oversight board created to monitor the FISC to
help increase public accountability and act as a public liaison in addition to
mandating Congressional approval for judges appointed to the FISC. The court
could certainly be more transparent but, for now, the adopted reforms reflect
significant progress.
What do you think?
I agree with you, Tara. I really, really dislike government secrecy, but I can understand that there are some times it may be necessary. One thing I am very concerned about, I think that the judges should be chosen through a different manner, rather than by one individual. That seems wrong to me, especially since the court itself is a private event. I don't think it's right to have a private court with people hand-picked to be there. That just sounds sketchy to me.
ReplyDeleteI've always been an outspoken champion of government transparency, but I also understand the necessity of some degree of secrecy when it come to security issues. What worries me in this instance, however, is the extent to which the FISA court rubber stamps proposals, as Tara noted. There doesn't seem to be a great deal of deliberation happening. If the court must remain closed, then I agree that further reforms concerning the selection of judges and accountability must be made. The status quo unilateral selection by the chief justice cannot continue. There just seems to be too little oversight concerning a court shrouded in secrecy.
ReplyDeleteAs many issues like this we have discussed this semester, it is easy to understand both sides of the argument. I agree that reform is a step in the right direction, especially considering the current lack of transparency and parity the FISA court seems to have. I probably sound like a broken record when I say this, but I always get suspicious when the government claims national security and prevention of terrorism when defending their somewhat shady operations in cases like this. The fact that NONE of the 2012 applications were denied shocks me. Obviously, I am in favor of having national security and preventing terrorism, but to me, the frequency in which these threats are cited just rubs me the wrong way. I think there is a middle ground to be found which allows for more transparency and also does not jeopardize the national security the government claims is at risk.
ReplyDeleteThe FISC was established to oversee approval of digital surveillance. This was initially done as Tara stated by FISA in response to the abuse of domestic surveillance in the 60s and 70s. However, it seems like the FISC is not doing a very good job. From what Tara described, the rampant rubber-stamping of applications without much processing time is scary. The court that is supposedly looking over the NSA and other government surveillance agencies seems like such a pushover granting nearly all of the requests.
ReplyDeleteLike many have stated, I think the FISC needs a reform to bring to it greater transparency or not having it being solely ex party and having a reformed judge selection process.
All in all, I think that a system that protects privacy through the disclosure of cases is the best way to protect public privacy. The appointment of public advocates is a great idea, but you always have the possibility of the advocates not doing their jobs properly. I understand that it's difficult to disclose information about court proceedings without endangering the operations that the court was created to facilitate, but, as I've mentioned before, I believe that the problem of trusting the government to make the right decision should be a non-issue. I believe that the way people act is drastically impacted by the circumstances that they find themselves in, and if the FISC is maintained in a way that requires no public accountability, there is no sure way of knowing whether or not they are acting in the public interest, despite the source of the judges or the existence of privacy advocates (which, according to the text of the USA Freedom Act (S.2685) that created their post, are appointed by the FISC court anyway). Public disclosure is the only acceptable way to promote accountability.
ReplyDeleteI agree with the common sentiment – there should be transparency in the government, but there is also a need to balance that transparency with opaqueness for the sake of national safety. The approval rate does concern me. There should be at least some rejections in the lot if there truly is a review process going on. The near 100% acceptance rate definitely brings up the idea of FISC simply being a rubber stamp for the government’s activities. The public advocates are certainly a good step forward, but increasing transparency more would help alleviate some of the concerns on lack of oversight. Removing all ex parte proceedings would make the court more transparent, but would limit the ability of the court to protect the proceedings for the purpose of national security. A middle ground could be used, such as allowing for the government to petition for something to be ex parte to an advisory board and then the board approving or denying that request based on the sensitivity of the material, before the case moves on to FISC. That would create the oversight but still allow the government to proceed ex parte for cases of heightened security.
ReplyDeleteI think that it is very possible that one of the reasons that so many applications get approved by the FISA is because they have to submit an application. What I mean by that is exactly what we have talked about in class about behavior under observation. People act differently when they know that they are being watched, I think the same rules can be applied here. People are only going to apply for reasonable searches when they know that that application needs to be approved.
ReplyDeleteThat is good, that is what this court is meant to do. That said I think that the same priceable should be applied to the court itself. There is something inherently dangerous about people in power that function unobserved. Unfortunately this court deals in matters that could endanger public safety if the details of the preceding were known by everyone. I think that it would be a good idea to enact an oversight board. I think it would help the FISA remember the rights of the people as well as there safety.
I agree with the prevailing sentiment: transparency is good, secrecy can be necessary. I like the proposals, but I think that none of them address the problem that there are simple too few people in the know. Additionally none of the court proceedings are ever made public. Since the FISA Court is primarily justified by the threat of terror, I would suppose that the need for secrecy is fairly temporary (shouldn't it no longer be necessary to keep an operation secret once it has been completed?). I think there should be some reasonable time limit after which the court proceedings should be revealed. Whatever agency is making a request of the FISA court would have the ability to petition that their hearing remain secret for anywhere from a month to several years. If they asked for more than a year, you could require en banc. More than 3: congressional approval or federal courts, etc.
ReplyDeleteMy sentiments are in line with most of the rest of the class. I agree with Steffi about the need for balance between transparency and opaqueness. I also feel that there needs to be a balance found between protection and the need for the public to know what their government is doing. I understand the need for secrecy and discretion when it comes to sensitive information regarding the government's actions in defense to threats on our nationals security. That being said, I believe it is totally inappropriate for the chief justice to appoint all of the judges in the FISC court in conjunction with the court being private. Because I feel that there is a need for the court to remain private for national security reasons, I do think there is a definite need for the appointment process of these judges to be reformed. I believe that with a more varied pool of judges as well as the use of public advocates, the results of the FISC court will be more reflective of what is best for the American public. I also think this could help with the problem of the mass acceptance rate we have seen over the past several years.
ReplyDeleteI acknowledge that secrecy is important at times and that terrorism is a threat, but the way the FISC is currently set up ideologically violates the safety nets built into the framework of the Constitution and puts way too much power in the hands of one single party. I don't see how the citizens of the United States have any jurisdiction over the FISC, which to me is very concerning, even more concerning than a potential terrorist threat.
ReplyDeleteI like Josh's statement about public disclosure creating accountability. I feel that we could have a much more transparent system and still effectively combat terrorism if we held the court publicly accouuntable for their decisions. They don't need to disclose government intelligence that can compromise the safety of the people, but they shouldn't be keeping everything locked up tight. The unfortunate thing is that, unless a system were to be put in place to change this, the only party determining what should be secret and what should be public is the government. What happens when we are so concerned about the immediate threat of foreign terrorists that we overlook the potential for "political terrorists" to exploit these governmental problems?