What Went Wrong with the FISA Court

March 18, 2015

The Foreign Intelligence Surveillance (FISA) Court is no longer serving its constitutional function of providing a check on the executive branch’s ability to obtain Americans’ private communications. Dramatic shifts in technology and law have changed the role of the FISA Court since its creation in 1978 — from reviewing government applications to collect communications in specific cases, to issuing blanket approvals of sweeping data collection programs affecting millions of Americans.

Under today’s foreign intelligence surveillance system, the government’s ability to collect information about ordinary Americans’ lives has increased exponentially while judicial oversight has been reduced to near-nothingness. This report concludes that the role of today's FISA Court no longer comports with constitutional requirements, including the strictures of Article III and the Fourth Amendment. The report lays out several steps Congress should take to help restore the FISA Court’s legitimacy.
 

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By James Robertson, former U.S. District Court Judge for the District of Columbia from 1994 to 2010. He also served on the Foreign Intelligence Surveillance Court from 2002 to 2005, resigning the day after The New York Times reported that the administration of President George W. Bush was conducting warrantless surveillance of Americans’ electronic communications.
 

Many people are surprised to learn that there is no “right to privacy” in the Constitution. Privacy is more of a cultural construct than a legal one in this country, and we are aiding and abetting its steady erosion with our dependence on the Internet, our credit cards and smartphones, our flirtation with social media, and our capitulation to commercial exploitation of Big Data. In a sense, we are all under surveillance, all the time — our whereabouts, activities, and transactions reduced to metadata and available to anyone who can break the code — and we have brought it upon ourselves.

Surveillance by the government, however, is another matter. Distrust or at least wariness of a government that collects data about us lies deep in the amygdala of our civic consciousness. This administration may be operating lawfully and with full regard to our rights and privileges, but what about that one? Have we been reading too many novels, or is there a real threat of tyranny? Here, of course, is where the Constitution comes in, with the Fourth Amendment’s guarantee of “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

And here is where concern about the Foreign Intelligence Surveillance Act comes in. Title III of the Omnibus Crime Control and Safe Streets Act of 1968 established the rules for domestic government wiretaps. FISA, enacted ten years later, focused on foreign intelligence. But it is the use (or misuse) of FISA, and FISA’s potential allowance of unreasonable domestic searches and seizures, that the reporting of James Risen and Eric Lichtblau and the disclosures of Edward Snowden have brought into sharp focus.

I have no criticism of the FISA Court. I know and deeply respect every one of its presiding judges for the last 30 years, and I am well acquainted with many of the other FISA judges who have served. They are, every one of them, careful and scrupulous custodians of the extraordinary and sensitive power entrusted to them. The staff that supports the FISA Court, the Justice Department lawyers who appear before the FISA Court, and the FBI, CIA and NSA personnel who present applications to the FISA Court are superb, dedicated professionals.

What I do criticize is the mission creep of the statute all of those people are implementing.

The Brennan Center report makes an enormous contribution to our understanding of that mission creep. It explains clearly the history and development of FISA from its enactment following the Church Committee’s exposure of uncontrolled domestic spying by the FBI, through the Patriot Act amendments in the turbulent wake of the 9/11 attacks, to its present form. It explains, with a simplicity and clarity accessible to the layman but supported by a level of detail and citation of authority that will satisfy students of the subject, why in its present form FISA is disturbing to civil libertarians and to constitutional scholars. And it distills its argument into plain, powerful recommendations for FISA’s amendment.

It is time, and past time, for Congress to give serious attention to the FISA problems that are so clearly documented here, and to act. The Brennan Center’s recommendations are not the only ones that have been put forth, but they are not doctrinaire, my-way-or-the-highway demands. They invite discussion, debate, and even (Heaven forfend) compromise. They need to be carefully considered.

What Went Wrong With the FISA Court