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To Protect Our Privacy, Make the FISA Court Act Like a Real Court

The FISA Court no longer acts as a check on the executive branch. To bring the court back to it’s constitutional purpose, Congress will have to enact serious reforms to safeguard Americans’ privacy.

Cross­pos­ted in The Los Angeles Times.

The expir­a­tion of key surveil­lance author­it­ies this spring will force Congress to grapple with the sprawl­ing spying activ­it­ies exposed by Edward Snowden. Defend­ers of the status quo sound a famil­iar refrain: The National Secur­ity Agency’s programs are lawful and already subject to robust over­sight. After all, they have been blessed not just by Congress but by the judges of the Foreign Intel­li­gence Surveil­lance Court, or FISA court.

When it comes to the NSA’s mass surveil­lance programs, however, the FISA court is not acting like a court at all. Origin­ally created to provide a check on the exec­ut­ive branch, the court today behaves more like an adjunct to the intel­li­gence estab­lish­ment, giving its blanket bless­ing to mammoth covert programs. The court’s changed role under­mines its consti­tu­tional under­pin­nings and raises ques­tions about its abil­ity to exer­cise mean­ing­ful over­sight.

The FISA court was born of the spying scan­dals of the 1970s. After the Church Commit­tee lifted the curtain on decades of abus­ive FBI and CIA spying on Amer­ic­ans, Congress enacted reforms, includ­ing the Foreign Intel­li­gence Surveil­lance Act of 1978. The law estab­lished a special court to review govern­ment applic­a­tions to inter­cept commu­nic­a­tions between Amer­ic­ans and foreign­ers over­seas for the purpose of acquir­ing inform­a­tion about foreign threats.

Members of Congress debat­ing the law were concerned about a court that would oper­ate in secret and hear only the govern­ment’s side of the argu­ment. The Consti­tu­tion limits courts to resolv­ing actual “cases or contro­ver­sies.” This gener­ally requires the pres­ence of two parties with adverse interests, as well as a concrete dispute that allows the court to apply the law to the facts of the case.

Although even the Justice Depart­ment agreed it was a “diffi­cult ques­tion,” Congress decided that the FISA court proced­ure was consti­tu­tional because of its simil­ar­ity to regu­lar crim­inal warrants. There, too, the court hears only from the govern­ment, yet consti­tu­tional require­ments are satis­fied because the subject of the search even­tu­ally must be noti­fied and may mount a chal­lenge at trial. (The analogy is imper­fect, as subjects of FISA surveil­lance are noti­fied only if legal proceed­ings result, which is rare in foreign intel­li­gence cases.) And, like their coun­ter­parts review­ing crim­inal warrant applic­a­tions, FISA judges would apply the law to the facts of a partic­u­lar case.

Nearly four decades later, the core assump­tions about what made the FISA court legal have been upen­ded. Take the court’s role in approv­ing the NSA’s bulk collec­tion of Amer­ic­ans’ phone records. The Patriot Act allows the FBI to obtain busi­ness records if it demon­strates to the FISA court that they are “relev­ant” to a foreign intel­li­gence invest­ig­a­tion. As Snowden revealed, the FISA court accep­ted the govern­ment’s argu­ment that all Amer­ic­ans’ records are “relev­ant” because some relev­ant records are buried within them. It allowed the NSA to create a massive data­base of highly personal inform­a­tion without any indi­vidu­al­ized offer of proof.

A similar aban­don­ment of case-by-case adju­dic­a­tion resul­ted from the FISA Amend­ments Act of 2008. These amend­ments removed the law’s require­ment that the govern­ment obtain an order from the FISA court each time it collects commu­nic­a­tions between a foreign target and an Amer­ican.

Today, when collect­ing such commu­nic­a­tions, the govern­ment need only imple­ment proced­ures to ensure the program adheres to broad stat­utory require­ments. The FISA court’s role is limited to approv­ing these proced­ures; it has no role in judging how the govern­ment applies them in indi­vidual cases. Given the explo­sion in global commu­nic­a­tions, this means that millions of Amer­ic­ans’ phone calls, emails and text messages are collec­ted by the NSA, no indi­vidu­al­ized court order required.

These judi­cial activ­it­ies look noth­ing like the grant­ing of warrants in crim­inal invest­ig­a­tions. Judges in crim­inal cases do not issue orders allow­ing police officers to search any and all houses, on the ground that some surely contain evid­ence of a crime. Nor do judges secretly approve general guidelines for search­ing homes, leav­ing the applic­a­tion of them to the discre­tion of police officers.

There are good reas­ons the Consti­tu­tion charges courts with adju­dic­at­ing disputes between parties rather than pre-approv­ing broad govern­ment programs. It preserves the separ­ate func­tions of the branches of govern­ments. And it ensures that courts do not take on a role that they are ill-equipped to handle. Time and again, as the Snowden archives reveal, the FISA court was blind­sided by how the NSA actu­ally imple­men­ted the vast programs the court approved.

Lawmakers have intro­duced bills to require greater disclos­ure of FISA court decisions and to estab­lish a public advoc­ate to argue against the govern­ment in some cases. Though help­ful, these meas­ures would not fully address the funda­mental prob­lem: The FISA court simply does not act like a court anymore.

Congress can fix this when it tackles surveil­lance legis­la­tion. Judi­cial approval should be required each time the exec­ut­ive branch seeks to acquire an Amer­ic­an’s busi­ness records or commu­nic­a­tions with a foreign target. Chal­len­ging surveil­lance after the fact should be made easier too. That would require more robust disclos­ure and a dismant­ling of the juris­dic­tional barri­ers that stymie legal chal­lenges to surveil­lance.

By shor­ing up the court’s role as an inde­pend­ent check on the exec­ut­ive branch, these reforms will better safe­guard Amer­ic­ans’ privacy and prevent abuse. That was Congress’ original purpose in creat­ing the FISA court. After decades of drift, it’s time to return the court to its consti­tu­tional moor­ings.