Post-9/11 Overreach of Secret Federal Court Must End

Crossposted from Al Jazeera.

After weeks of hints and previews, National Security Agency muckraker Glenn Greenwald reported on the agency’s surveillance of five American Muslim men who seem more like political activists than terrorists. The story raises new questions about whether the secret Foreign Intelligence Surveillance Court (FISC) can be trusted to serve as a bulwark against government overreach.

It’s no secret that, in the last decade, law enforcement agencies such as the New York Police Department and the Federal Bureau of Investigation have targeted American Muslims for surveillance in the places where they gather, such as mosques and student groups. But to target an individual for electronic surveillance, law enforcement must typically convince a magistrate that there is probable cause to believe that she has engaged or is about to engage in criminal activity. We trust that our courts will not issue a warrant for our private communications without reason. As a lawyer working on surveillance issues, I am careful about where I conduct sensitive conversations. But I have never seriously believed that a judge would sign off on a warrant to monitor my emails or phone calls.

This story changes my calculus. It appears that the FISC authorized the surveillance of most of the men Greenwald named. The standard for such an order is more malleable than the familiar probable-cause yardstick. For an American citizen or legal permanent resident, the government must demonstrate probable cause to believe that he or she is an “agent of a foreign power.”

When this standard was created in the late 1970s, many in Congress were concerned it would sweep too broadly. Then-Sen. Joe Biden objected to allowing surveillance based on something less than probable cause relating to a particular crime, likening the move to the general warrants abhorred by the framers of the Constitution. The chair of the Senate Intelligence Committee, Birch Bayh, worried that it would cover not just spies but also any American whose “political efforts on behalf of a foreign government might be labeled clandestine.” The bill was amended somewhat: To be considered an agent of a foreign power, a person must engage in “clandestine intelligence gathering” and, in addition, such activities must or “may” involve a violation of U.S. criminal law.

It has never been clear how close a connection to criminal activity is required by this formulation. And because FISC judges operate in secret, outside observers haven’t been able to evaluate how it is applied in practice. Reported statistics, which show that the court granted the government’s applications on all but 12 out of some 34,000 occasions, provide only a crude way to assess the stringency of court review. Government officials have argued that the high approval rate reflects the care taken in preparing surveillance applications rather than a pro-government bias. Just recently, the court’s presiding judge noted that the court had required modifications of almost 25 percent of government requests.

The cases of the five Muslim men subjected to surveillance, apparently based on orders issued by the court, provide a rare window into its operations. What we see raises serious questions about how the court is applying legal standards in secret. Take the case of Faisal Gill, a military lawyer who served as a high-level official with security clearance in the White House and the Department of Homeland Security. He went on in 2007 to win a Republican primary for a seat in the Virginia Legislature and followed the time-tested path of former government officials by serving as the attorney for a foreign government (Sudan). During his government years, Gill was investigated by DHS because he served in an organization with a man who pleaded guilty to an assassination. Gill was emphatically cleared of any wrongdoing — twice. But that didn’t stop the NSA from monitoring his emails when he became a political candidate. Sure, there could be additional facts that change the picture of Gill as a pillar of American society. But what we do know raises a red flag about whether it is too easy for the government to depict someone as an agent of a foreign power.

After the attacks of 9/11, new laws gave the government powers that went even further than the 1970s-era rules used to target individuals like Gill. The 2001 Patriot Act included a provision that was interpreted by the FISC to allow bulk collection of Americans’ phone records. The 2008 FISA Amendments Act required the court to review NSA rules for collecting foreigners’ communications with Americans to judge whether these broad standards complied with the law. Under both authorities, the court was tasked with authorizing technically complex programs that gathered huge amounts of Americans’ information rather than conducting individualized hearings.

The most far-reaching reform proposals seek to bring the court back to its pre-9/11 role of ruling on specific applications. It has also been suggested that court decisions approving new programs or addressing novel legal questions be declassified and that a public advocate be appointed for these types of cases. But none would cover the routine court orders that allowed the NSA to spy on Gill. The potential abuse of these older authorities revealed by Greenwald’s story should lead us to question whether the current reform agenda goes far enough and whether a special secret court can really work in a democratically accountable fashion. It is time to think about jettisoning the court altogether and sending all surveillance applications —­ foreign and domestic — to regular federal courts.