No More Kangaroo Courts If These Spy Bills Pass
By Shane Harris and John Reed
August 1, 2013,
If three of the National Security Agency’s most vocal critics have their way, the secretive Foreign Intelligence Surveillance Court will look a lot more like a traditional court, with arguments being presented on both sides and a chance to oppose the government’s interpretation of surveillance law.
Sens. Richard Blumenthal, Ron Wyden, and Tom Udall introduced a pair of bills today that would significantly alter proceedings before the court and the manner in which its members are chosen.
The first of the two bills would require that the court, which authorizes surveillance by the NSA, hear arguments from government attorneys and an appointed "special advocate" whenever surveillance requests "raise novel issues of law."
Under current proceedings, the court only hears from the government’s attorneys when deciding whether to authorize surveillance and when interpreting surveillance law. The new special advocate would act as a counterweight and argue in favor of narrower interpretations, with an eye towards enhancing privacy protections.
The advocate would be chosen for a five-year term by the presiding judge of the FISA Court of Review, which acts as an appellate body to the main court and has rarely met in its three-decade history. The presiding judge would choose from a panel of candidates nominated by the Privacy and Civil Liberties Oversight Board, an independent body. The advocate would be empowered to appeal the court’s decisions to the review court.
The bill would also shed some light on the court’s closed-door proceedings. It would require any FISA court opinions that involve "significant legal interpretations" to be disclosed publicly. The Attorney General would have to ensure that the decision revealed enough information to make clear what the legal debate at issue was and how it was resolved.
The bill is a direct response by lawmakers to the NSA’s acquisition of large amounts of data on U.S. citizens and legal residents. Under a FISA court order that was published by the Guardian newspaper, the NSA was authorized to collect in bulk the telephone records of millions of Americans on an ongoing basis. Wyden has been most vocal among the lawmakers arguing that the spy agency overstepped its authority and that the FISA Court interpreted surveillance law in a way that Congress didn’t intend.
"There was nobody there to offer the other side," Wyden said at a press conference in Washington this afternoon. "I know of no other court in America that is so one-sided." Blumenthal said that court "exercises vast invisible power" and that the reforms would bring it more in line with traditional, adversarial proceedings.
A second bill would change the way FISA Court judges are selected. Currently, members of the eleven-judge panel are appointed by the Chief Justice of the Supreme Court and serve seven-year terms. Under the bill, the number of judges would be expanded to thirteen, the total number of federal circuits in the United States. A district court judge would be appointed from each circuit by the Chief Judge in that circuit. The Chief Justice of the Supreme Court would get to approve the candidate. But if he declined, he would have to choose one of two more candidates offered by the Chief Judge.
The bill is intended to create a more "geographically and ideologically balanced" court, the lawmakers said. The New York Times recently reported that the FISA court has been stacked with mostly conservative jurists and those with executive branch backgrounds, adding to the long-standing critique that the secret panel is inclined to favor the government’s position when deciding whether to grant a surveillance request. It has only ruled against against the government fewer than a dozen times.
The Chief Justice would be allowed to select members of the FISA Court of Review, but he must obtain the approval of five associate justices.
A retired judge who served on the FISA Court told a government oversight panel last month that the process for approving secret surveillance should be changed to allow for a more adversarial process.
"A judge has to hear both sides of a case before deciding," said James Robertson, who retired from the D.C. circuit in 2010. "What [the FISA Court] does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but the 2008 amendment has turned the FISA court into administrative agency making rules for others to follow."
Robertson was referring to a 2008 amendment of the surveillance law that, for the first time, allows the government to obtain authorization to monitor a large number of individuals at once, instead of getting a warrant before surveilling every single target.
Sen. Al Franken also introduced legislation that would require the government to pubilcly report the number of times the FISA Court issues orders under the section of the Patriot Act that authoirzed bulk collection of phone records, as well a provision of FISA that allows for broad searches of Intenret data. It would also require the government to disclose how many U.S. persons records were collected and reviewed by federal agents. Companies that receive orders to hand over information about their customes would be allowed to voluntarily disclose how many orders they received, the general categories of information they gave the governemnt, and the number of users whose information was involved.
Meanwhile, Rep. Adam Schiff is crafting a House bill that would call for the creation of a corps of attorneys who would represent privacy interests of U.S. citizens before the Foreign Intelligence Surveillance Court.
Much like the Senate proposal, the lawyers in Schiff’s bill would have security clearances that allow them to work on the top secret intelligence cases the FISC oversees.
"It would use the Privacy and Civil Liberties Board to create a pool of attorneys that can be appointed by the FISA court," Schiff told Killer Apps. "We’re trying to introduce [it] this week. . . . We hope to have it ready soon."
These lawyers would have the power to appeal rulings by the court and will only be involved in cases that have no binding legal precedent, or involve changes to the intelligence collection programs, according to Schiff.
The attorneys wouldn’t be brought in "on garden variety cases of a warrant on a specific person," said Schiff. "But it would be for cases of first impression, constitutional dimension, programmatic change, the larger issues."
The House intelligence committee is also looking at the feasibility of having telecommunications firms maintain a database of users’ telephone and Internet records instead of having the government gather and hold that information as it currently does under Section 215 of the Patriot Act.
"We’re going through all of those issues," committee chairman Mike Rogers told Killer Apps today. "We’re trying to look at the technical difficulties, the expediency difficulties, companies’ willingness to do it — as you can imagine, they’re not excited about the prospect to have to do that — costs all of that, we’re working through it."
