EDITORIAL NOTE: Recent discussion about various approaches for reforming the FISA Court and the approval and review processes for government surveillance programs can be found here and here. Another blog-essay about the FISA Court becoming captured by the intelligence agencies that it oversees can be found here. The essay below by Ben O’Neill describes the secretive nature and function of the FISA Court, as well as judicial capture and other problematic implications that can result from its structure.
We begin our analysis of the legal machinations of the NSA by looking at the secret court system which supposedly practices judicial oversight over the agency. This Foreign Intelligence Surveillance Court (FISA Court1 or FISC) was created in 1978 as a result of recommendations of the Church Committee, composed after a series of intelligence scandals in the 1970s.2 The court was purportedly created as an additional safeguard against unlawful activity by US intelligence agencies, which had been found to have committed various kinds of unlawful surveillance activities.
The goal of the FISA court, as originally conceived, was to place judicial oversight on the surveillance activities of the NSA, by requiring the agency to obtain warrants from the court before intercepting communications. This was to place the NSA under the same kind of legal constraints as regular police, with requirements for evidence being put before a court in order to obtain a warrant for search. However, unlike the court system for regular police warrants, the judicial system for the NSA is far more secretive. In order to give judicial scrutiny to preserve the secrecy of NSA activities, the FISA court meets in secret with only government representatives present at its proceedings. The hearings are closed to the public and the rulings of the judges are classified, and rarely released after the fact. (Some rulings have been partly declassified, but are still heavily redacted.) The judges in the FISA court hear applications from a representative of the NSA, and ask questions, allowing the agency to amend their applications to meet any shortcomings. Adversarial argument from other parties is absent, since there are no other parties at the hearing.
Some of this is similar to the operation of public courts for regular police warrants, but there is a great deal more secrecy, and a great deal more power granted to the government. One distinction between the FISA Court, and regular public courts issuing warrants for police searches, is the type of warrant system that is practiced under the FISA Court. For police searches it is generally the case that the police will apply for a warrant to surveil a particular person, or a small group or people, and give some evidence of “probable cause” for a search, i.e., the police must convince the court that there is reasonable suspicion for surveillance on a case-by-case basis. Under the FISA Court the warrants for the NSA are much wider in scope. Many of the warrants authorize the collection of communications data on a particular phone carrier, capturing the communications of millions of people over sustained periods of time. Other warrants are “procedure-based” warrants which authorize a proposed data-collection process, subject to various “minimization procedures” designed to confine the querying of data. These generally allow mass data-collection on a population, with application of the minimization procedures left to the NSA.
As with other law enforcement authorities, the record of the NSA in obtaining warrants from the FISA court is imposing. In the 33,949 applications that were resolved from 1979-2012, only 11 were rejected (0.0324%).3 (The rejection rate for other wiretap applications in state and federal courts is similarly low.4 Though originally designed merely to issue secret warrants for surveillance, the powers of the FISA Court have expanded over time, with a large expansion of power occurring in 2008, when the Bush administration retroactively immunized any “electronic communication service provider” from any liability for their complicity in unlawful NSA surveillance.5
In order to deal with a large number of warrant applications, the powers of the FISA Court have expanded to the point that it has undertaken quasi-constitutional proceedings, allegedly validating the surveillance programs as being within the constitutional powers of the US government. Even in this latter function, the hearings have been closed to the public and have been conducted with only the government giving arguments to the court. Hence, the government has had free rein to be the only party represented at hearings which have purported to determine its own legal powers under the US Constitution. For this reason, one commentator has noted that, “[i]n truth, the FISC has basically become a parallel Supreme Court, but one which operates in almost total secrecy.”6
The effect of this secret court system has been to allow the NSA to build up 34 years of judicial precedents in favor of its expansive powers, with a large body of purported constitutional findings validating its own power. All of this has been conducted behind closed doors, without the inconvenience of opposing argument from other parties. Perhaps unsurprisingly, this secret court system has opened up opportunities for judicial capture for the NSA. As noted by legal scholar Elizabeth Goitein, “[l]ike any other group that meets in secret behind closed doors with only one constituency appearing before them, they’re subject to capture and bias.”7
For former FISA court judge James Robertson, these remarks have rung true to such an extent that he has publicly complained about the ex parte nature of the FISA court proceedings.8 According to this former member of the court, “[w]hat FISA 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 an administrative agency making rules for others to follow.”9
To the extent that judicial capture has been resisted by the court, it has nonetheless functioned as a compliant entity to the NSA, through the fact that any criticisms against the unlawful actions of the NSA have been kept secret, and have been without any serious legal consequence to the agency. When the Chief Judge of the FISA court was alerted to a mass of systematic misrepresentations to the court by the NSA, the consequence was a “stern rebuke” in a classified memorandum that was not available to the public until years later.10 (In fact, the opinion was only declassified due to public pressure as a result of the Snowden leaks. If not for these leaks it is likely that the opinion would still remain classified today.) In March 2009, following breaches of the courts orders, the Chief Judge found that the testimony of General Keith Alexander setting out the NSA interpretation of the court’s orders “strained credulity” by interpreting a part of the orders as effectively being optional.11 He also found that “[t]he minimization procedures proposed by the government in each successive application and approved and adopted as binding by the orders of the [FISA Court] have been so frequently and systematically violated that it can fairly be said that this critical element of the overall [metadata] regime has never functioned effectively.”12 Despite lacking confidence that the NSA would comply with future orders, the Chief Judge allowed the mass collection of metadata to continue, and allowed the government to continue to apply for access to this data on a case-by-case basis, or for imminent threats, until such time as they completed a review of their procedures. The NSA completed their review and the regular operation of the mass-surveillance program was restored shortly afterward.
Some commentators have taken this judicial rebuke by the FISA court as proof of the “toughness” of the court on the NSA, but in fact, it is proof of their subservience to the agency. Despite finding that there had been systematic misrepresentations to the court by the NSA, no action was taken against officials who had given false statements to the court. There was no disciplinary action of any kind against personnel of the agency, and the “rebuke” of the court remained a private classified document, only available to the agency being criticized. NSA officials who had systematically misled the court were free to read this rebuke knowing that no consequence would follow from it, since no member of the public could read about their actions. When the matter was later exposed to the public (as a result of the Snowden leaks) the Chief Judge complained that his court “… is forced to rely upon the accuracy of the information that is provided to the Court.”13 The surveillance programs of the NSA continued, with ongoing approval by the court, after a short period of technical review conducted by the NSA. Such “toughness” as this is what passes for “checks and balances” within the system of secret courts.
The dubious nature of the FISA court is well-understood within the wider judicial system, a fact which was clear in the Klayman preliminary judgment. The stark distinction between the secretive FISA court and the public court system was recognized by Judge Leon when he observed that, “… no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the government urges me to be the first non-FISC judge to sanction such a dragnet.”14 It is notable here that Judge Leon felt that it was significant that he was the first non-FISC judge to consider the matter, a tacit recognition that the judgments of the FISC cannot be regarded as true constitutional scrutiny.
Legal scholar Randy Barnett has argued that surveillance programs by a secret court violates the requirement for “due process of law.” According to Barnett, “[s]ecret judicial proceedings adjudicating the rights of private parties, without any ability to participate or even read the legal opinions of the judges, is the antithesis of the due process of law.”15 Though we refer to such an institution as a “court” system in the positive-law sense, in truth, such a “court” lacks many of the characteristics of a proper court. It is in fact more akin to bodies such as the English Star Chamber, which conducted judicial hearings in secret, issuing secret rulings affecting parties who were not represented in its hearings.
Ben O’Neill teaches at the University of New South Wales (ADFA) in Canberra, Australia. This article was previously published at Mises Daily, and it is republished here with permission from the Ludwig von Mises Institute. Also see Professor O’Neill’s article “Edward Snowden, the NSA, and the US Courts.”
- 1. FISA refers to the Foreign Intelligence Surveillance Act 1978 (US) which established the court.
- 2. Formally, this was the ‘US Senate Select Committee to Study Governmental Operations with respect to Intelligence Activities’. It is known informally as the ‘Church Committee’ since it was chaired by Senator Frank Church. The committee was formed in response to the Watergate scandal and other intelligence scandals, where the NSA, CIA and FBI had undertaken various unlawful activities.
- 3. See FISA Court Orders 1979-2012. Epic.org. The court has defended itself from this statistic by noting that many applications were withdrawn or amended by the NSA prior to final hearing; see e.g., Walton, R.B. (2013) Letter to Patrick Leahy
- 4. See US Courts (2012) Wiretap Report 2012, Table 7.
- 5. This was accomplished by the FISA Amendments Act 2008 (US) which provided a release from liability for any “electronic communication service provider” for providing information in accordance with an order/ request/directive from the Attorney General or Director of National Intelligence. Notably, the section does not refer to a lawful request or order, but just any request or order. This was understood to mean that there would be immunity even for complicity with unlawful actions by the NSA.
- 6. Whitehead, J.W. (2013) Kafka’s America: secret courts, secret laws, and total surveillance . Antiwar.com, 24 July 2013.
- 7. Klein, E. (2013) Did you know John Roberts is also Chief Justice of the NSA’s surveillance state? The Washington Post, Wonkblog, 5 July 2013.
- 8. Roberts, D. (2013) US must fix secret FISA courts, says top judge who granted surveillance orders . The Guardian, 10 July 2013.
- 9. Ibid.
- 10. Nakashima, E., Tate, J. and Leonnig, C. (2013) Declassified court documents highlight NSA violations in data collection for surveillance . The Washington Post, 10 September 2013.
- 11. FISA Court (2009) Order – In Re Production of tangible things from [Redacted] . Docket BR 08-13, p. 5.
- 12. Ibid, p. 11.
- 13. See Leonnig, C. (2013) Court: Ability to police U.S. spying program limited . The Washington Post, 16 August 2013.
- 14. Ibid, Klayman, emphasis added.
- 15. Ibid, Barnett (2013).