What It Is And Why It Doesn't Work
"The secrecy of individual FISA cases is certainly necessary, but this secrecy has been extended to the most basic legal and procedural aspects of the FISA, which should not be secret. This unnecessary secrecy contributed to the deficiencies that have hamstrung the implementation of the FISA. Much more information, including all unclassified opinions and operating rules of the FISA Court and Court of Review, should be made public and/or provided to the Congress."Allegations of Bias. Elizabeth Gotein, a co-director of the Liberty and National Security Program of the Brennan Center for Justice at the New York University School of Law, has criticized the court as being too compromised to be an impartial tribunal that oversees the work of the NSA and other U.S. intelligence activities. She says:
Julian Sanchez, a scholar at the Cato Institute, has described the near certainty of the polarization or group think of the judges of the court. Because all of the judges are appointed by the same person (the Chief Justice of the United States) and, because nearly all the judges are of the same political party (the Republican Party), and because these judges hear no opposing testimony and feel no pressure from colleagues or the public to moderate their rulings, group polarization is almost a certainty. He says:
Court Approves Requests, but Not Surveillance Programs. Stephen Vladeck has argued that the FISA Court reviews requests merely to ensure that they comply with various statutory requirements, including court-approved policies allow the NSA to:
- keep data that could potentially contain details of U.S. persons for up to five years, and
- retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.
The Most Revealing and Damaging Insight. Glenn Greenwald, who published details of the PRISM surveillance program in The Guardian , explained:
“… (T)his entire process is a fig leaf, "oversight" in name only. It offers no real safeguards. That's because no court monitors what the NSA is actually doing when it claims to comply with the court-approved procedures. Once the FISA Court puts its approval stamp on the NSA's procedures, there is no external judicial check on which targets end up being selected by the NSA analysts for eavesdropping. The only time individualized warrants are required is when the NSA is specifically targeting a US citizen or the communications are purely domestic.”
“When it is time for the NSA to obtain FISA Court approval, the agency does not tell the court whose calls and emails it intends to intercept. It instead merely provides the general guidelines which it claims are used by its analysts to determine which individuals they can target, and the FISA Court judge then issues a simple order approving those guidelines. “
“The court endorses a one-paragraph form order stating that the NSA's process 'contains all the required elements' and that the revised NSA, FBI and CIA minimization procedures submitted with the amendment 'are consistent with the requirements of [50 U.S.C. §1881a(e)] and with the fourth amendment to the Constitution of the United States.”
“As but one typical example, The Guardian has obtained an August 19, 2010, FISA Court approval from Judge John Bates which does nothing more than recite the statutory language in approving the NSA's guidelines. Once the NSA has this court approval, it can then target anyone chosen by their analysts, and can even order telecoms and internet companies to turn over to them the emails, chats and calls of those they target.”
The FISA Court plays no role whatsoever in reviewing whether the procedures it approved are actually complied with when the NSA starts eavesdropping on calls and reading people's emails. The guidelines submitted by the NSA to the Fisa court demonstrate how much discretion the agency has in choosing who will be targeted.
The only oversight for monitoring whether there is abuse comes from the executive branch itself: from the DOJ and Director of National Intelligence, which conduct "periodic reviews … to evaluate the implementation of the procedure."
“At a hearing before the House Intelligence Committee , deputy attorney general James Cole testified that every 30 days, the FISA Court is merely given an "aggregate number" of database searches on US domestic phone records. The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the FISA Court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.”Summary.
- It's poorly worded, with terms that are either ambiguous or too broad to be meaningful.
- The Court sometimes issues warrants or subpoenas without valid cause.
- Along with a FISA subpoena comes a gag order that bars recipients from ever discussing it with anyone except their lawyer(s).What's wrong with the FISA Court?
- There is entirely too much secrecy. Meaningful information could be shared without revealing vital secrets.
- Secrecy can be used to cover up malfeasance. Yet, because of the secrecy, it might never be revealed.
- FISA Court members are appointed by one person – the Chief Justice of the Supreme Court. The present Chief Justice could do this for a total of 30-40 years, continually appointing people who share his ideologies.
- Ever since FISA was implemented, all Chief Justices have been Republicans, and 91% of the FISA Court members have been Republicans. As a result, Republican Chief Justices have appointed all of the members of both the FISA Court and the FISA Court of Review – almost 50 appointments in total.
- Democrats tend to support civil liberties issues by almost a 2 to 1 margin over Republicans. If Republicans on the FISA Court follow suit, we cannot trust them to fully protect our civil liberties.
- The FISA Court hears only one side of a case, so they are more likely to rule in favor of that side. As of 2012, the FISA Court ruled in favor of the government 33,938 times out of 33,949 cases.
- Requests for warrants or court orders are heard by only one of the seven judges, who serve on a rotating basis. They meet as a group only about six times a year.
- This body consists of three members, and functions somewhat like an appellate court. However, because 99.97% of the cases in the FISA Court are decided in the favor of the government, there have been very few cases for them to review.
- At least twice, this court has overstepped its authority in making rulings on constitutionality, which are normally reserved for the Supreme Court.
What Next? We will see ongoing debate on these issues to give the impression that Congress as a whole really cares about protecting the privacy of the American people. They don't want to risk their chances of getting re-elected by not showing proper concern. However, I have seen little movement toward anything but token legislative changes that will do very little to address these problems. I hope I am wrong.