Legislation Would Strengthen Privacy Protection in The FISA Court System, and Change the Way its Judges are Appointed
Yesterday, U.S. Senator Tom Udall (D-N.M.), joined by Senators Richard Blumenthal (D-Conn.) and Ron Wyden (D-Ore.) – unveiled two bills that would ensure FISA courts properly balance the need to protect national security with constitutional and statutory requirements to safeguard individual rights to privacy and liberty. The first bill – the FISA Court Reform Act of 2013 – would create a Special Advocate with the power to argue in the FISA courts on behalf of the right to privacy and other individual rights of the American people. The second bill – The FISA Judge Selection Reform Act – would reform how judges are appointed to the FISA courts to ensure that the court is geographically and ideologically diverse and better reflects the full diversity of perspectives on questions of national security, privacy, and liberty.
“The reports about widespread surveillance programs have shown us that there is real reason to question whether civil liberties can be protected by a secret court, using secret law, issuing secret decisions,” said Udall, a former federal prosecutor. “Americans deserve the assurance that their civil liberties are not being swept aside behind closed doors. These measures would help ensure the FISA courts look and act like actual courts, which balance individual rights to privacy and liberty with the government’s need to protect against national security threats.”
Earlier today, Udall also joined Blumenthal and Wyden for a press conference at the U.S. Capitol to announce the legislation. Video of the press conference is available here. For more information on the FISA Court Reform Act of 2013, click here. For more information on the FISA Judge Selection Reform Act, click here.
Blumenthal said, “Because it exercises vast invisible power, the FISA Court must be appointed and operate in a way that inspires trust and credibility – now in danger because of recent revelations. Like any court, this one will make better decisions if it hears both sides. The Special Advocate can test, challenge and question the government when significant issues of law are raised, but this advocate for the Constitution will in no way impede the speed and security of the Court’s approval of critical activities protecting our nation – since the lawyers will have security clearance and participate most commonly in the Review court.”
“The FISA court is a judicial body with no parallel in American history,” Wyden said. “A group of judges operating in complete secret and issuing binding rulings based solely on the government’s arguments have made possible the sweeping surveillance authorities that the public only found out about two months ago. This court must be reformed to include an adversarial process where arguments for greater privacy protections can be offered alongside the government’s arguments for greater surveillance powers. A reformed FISA court should have an selection process that produces a more diverse group of judges, and a process to ensure that its important rulings are made public so that the American people can understand exactly what government agencies think the laws allow them to do. It was a lack of protections like these that allowed secret law to persist for so many years, and the legislation my colleagues and I are offering today will seize this unique opportunity to make important changes to our surveillance courts.”
Recent revelations have shed new light on the size and scope of the nation’s foreign surveillance activities and the ability of the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review – collectively, the FISA courts – to provide effective oversight of these operations. For example, in its 33-year history, the FISA courts have rejected just 11 out of nearly 34,000 surveillance requests made by the federal government, which raises questions about whether they provide a meaningful check and balance on government surveillance. The bills would reform the FISA courts to ensure they serve this crucial check-and-balance function.
The FISA Court Reform Act of 2013 would ensure that the FISA courts could only issue significant interpretations of law after arguments for and against any expansion of government surveillance are heard and considered. Over the last three decades, the FISA courts’ case law (i.e. decisions, precedents) has evolved through a non-adversarial, “ex-parte” process in which the government’s interpretation of the facts and law, including its statutory powers, is the only view heard on national security issues brought before the FISA courts. Although in ordinary criminal proceedings surveillance authorizations or search warrants are issued after a similar ex parte process, the legal principles governing this process come from judicial decisions regarding their admissibility or other issues – decisions issued after arguments for and against the issue before the court were heard and considered. The process of the FISA courts is not guided by such principles. In fact, the FISA courts can drastically expand government surveillance without any party other than the government having an opportunity to know or weigh in. The FISA Court Reform Act of 2013 would change this. Specifically, the bill would:
- Create an Office of the Special Advocate (OSA) tasked with advocating in the FISA courts’ closed proceedings for legal interpretations that minimize the scope of intrusion into our privacy. The OSA will have the authority to appeal decisions of the FISA courts, and would be staffed by attorneys who are properly cleared to view the classified information considered by the FISA courts and bound by the same confidentiality requirements as the courts’ staff and government officials.
- Allow interested parties to participate as amici, in cases involving significant or novel issues of law, most of which will be considered before the Foreign Surveillance Court of Review. Proceedings of the FISA courts would remain secret to protect national security, but the FISA courts would have the advantage of the insights and advocacy of outside experts and organizations.
- Require the Attorney General to disclose past and future significant legal interpretations of the FISA courts and empower the OSA to petition the FISA courts for expanded or modified disclosures that are consistent with valid national security concerns.
The FISA Judge Selection Reform Act would reform how judges are appointed to the FISA courts to ensure that the court is geographically and ideologically diverse and better reflects the full diversity of perspectives on questions of national security, privacy, and liberty. Currently, the eleven judges of the FISC and the three judges of the Foreign Surveillance Court of Review are designated solely by the Chief Justice of the United States. This system has failed to produce a panel of FISA judges representing diverse perspectives. For example, ten of the eleven judges currently serving on the Foreign Intelligence Surveillance Court were appointed to the federal bench by Republican presidents, and since Chief Justice Roberts began designating federal judges to the FISA courts in 2005, 86 percent of his designees have been Republican appointees. Furthermore, half of the Chief Justice’s choices have been former executive branch officials. Under the bill, the appointment process for the FISC would be revised as follows:
- The FISC would be expanded to thirteen judges, with each member of the Court to come from a designated federal circuit.
- Upon a vacancy in a particular circuit’s FISC seat, the Chief Judge of that circuit would submit to the Chief Justice of the United States a proposed designee to fill the vacancy. The designee must be a federal judge within the proposing Chief Judge’s circuit.
- The Chief Justice may accept the proposed designee or reject the designee and then ask for two additional names.
- If the Chief Justice asks for two additional names, he must designate one of those two candidates to fill the vacancy.
Additionally, the FISA Judge Selection Reform Act would change how Foreign Intelligence Surveillance Court of Review judges are appointed by requiring the approval of five Associate Justices of the Supreme Court to confirm a designation of the Chief Justice. This should have a moderating effect on the appellate FISA court, filtering out candidates who could present a strong appearance of bias.