Liberty, Prudence, Imperfection, and Law

“FISA, the NSA, and America’s Secret Court System,” By Ben O’Neill

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.”

 

Endnotes:

5 Responses to ““FISA, the NSA, and America’s Secret Court System,” By Ben O’Neill”

  1. gabe

    Another interesting essay!

    You are quite correct with respect to *Star Chamber* like proceedings.

    Yet, at root, there is still the issue of threats to the nation with which we should contend. How do we accomplish this? At its inception, the FISA Court was intended by its creators to provide some protections against the abuses you to which you allude. Yes, *capture* has occurred – as one would expect given political (and i include the judiciary in this) actors desire to remain in, or accrue some measure of power and influence unto themselves.

    So let us provide a Madisonian counterpoint. Something along the line of a Public Defender (or I.G.) answerable to no one, yes no one, serving for a limited time and whose sole responsibility is to argue against the issuance of such warrants. Performance would be measured by an outside body of individuals who would review only statistical measures of issue vs. non-issue of warrants.

    Somehow there must be a counter to the *capture* process while allowing for legitimate warranted surveillance.
    Any thoughts, anyone?

    Reply
    • Peter Haworth

      Gabe,

      Your suggestion about a public defender role is interesting, but I am not sure how it could become operational. What are your thoughts on this? I seem to recall seeing that there was something like this in the Senate’s Leahy Bill for FISA reform. Is this correct? Also, what are your thoughts about proposals to make send review and approval of new surveillance programs to Congress, rather than the “captured” FISC. See the links to Lawfare posts in the Editorial note. I think the current legislation in the pipeline adds a defender-like role, makes other reforms, but continues the FISC’s functioning as a quasi law-making court. The FISC is virtually an independent and alternative court system, albeit the Klayman case suggests that the federal judiciary can intervene to review constitutional errors.

      Reply
      • gabe

        Peter:

        reading the end-note cites is even more disturbing and convinces me that there MUST be a counterbalance to the captive system currently in operation. I forget which cite notes the need for an Adversarial system. I would certainly agree. Of course, the difficulty is to put in place a mechanism, as well as appropriately skilled and reasonable personnel, such that true security concerns WILL NOT be jeopardized while preventing the sort of rampant and extensive abuse which has blossomed under the current system.

        Here we run into a problem. One of the suggestions I read seemed to indicated that the Congress should be tasked with reviewing all these warrant requests or exercising some oversight. MY concern is that a) the Congress, as evidenced by the cozy relationships of Armed Services, Intelligence and other Congressional Committee and their “subject” Executive agencies, would soon comport like the “good old boys club” that they have traditionally been, and b) that the sheer volume of review required would once again *compel* (yeah, right) the Congress to outsource the problem to another soon to be *captured* sub- agency.

        I would think our best approach would be something on the order of, say former Justice Roberts (quoted above) approach that some credible outside group be tasked (and compensated by the taxpayer, free from Executive or even congressional budget manipulations) with the role of Adversary. As I am neither an academic nor an active military / intelligence actor, I can not name any specific group or person.
        In any event, freedom from both capture and coercion (budgetary and career wise) would be essential. What role for oversight of the Adversary might be assigned to the Congress (probably not workable) or an INDEPENDENT I.G. while unclear is probably capable of resolution.

        Anyway, just some thoughts. Again, I want to be clear that we must protect both essential intelligence operations AND constitutional protections of American citizens. I do not think that noted NGO’s like ACLU, etc will adequately balance both.

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