Reform the FISA Court: Privacy Law Should Never Be Radically Reinterpreted in Secret

Since the Guardian and Washington Post started publishing secret NSA documents a month ago, the press has finally started digging into the operations of ultra-secretive Foreign Intelligence Surveillance Act (FISA) court, which is partly responsible for the veneer of legality painted onto the NSA’s domestic surveillance programs. The new reports are quite disturbing to anyone who cares about the Fourth Amendment, and they only underscore the need for major reform.

As the New York Times reported on its front page on Sunday, “In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans.” The court, which was originally set up to just approve or deny wiretap requests now “has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents,” with no opposing counsel to offer counter arguments to the government, and rulings that cannot be appealed outside its secret structure. “It has quietly become almost a parallel Supreme Court,” reported the Times.

The Wall Street Journal reported on one of the court’s most controversial decisions (or at least one of the controversial decisions we know of), in which it radically re-interpreted the word “relevant” in Section 215 of the Patriot Act to allow for the dragnet collection of every phone call record in the United States.

The Journal explained:

The history of the word "relevant" is key to understanding that passage. The Supreme Court in 1991 said things are "relevant" if there is a "reasonable possibility" that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent.

But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases. The court's rulings on such matters are classified and almost impossible to challenge because of the secret nature of the proceedings.

Essentially, the court re-defined the word “relevant” to mean “anything and everything.” Sens. Ron Wyden and Mark Udall explained two years ago on the Senate floor that Americans would be shocked if they knew how the government was interpreting the Patriot Act. This is exactly what they were talking about.

It’s likely the precedent laid down in the last few years will stay law for years to come if the courts are not reformed. FISA judges are appointed by one unelected official who holds lifetime office: the Chief Justice of the Supreme Court. Under current law, for the coming decades, Chief Justice John Roberts will solely decide who will write the sweeping surveillance opinions few will be allowed to read, but which everyone will be subject to.

Judge James Robertson was once one of those judges. He was appointed to the court in the mid-2000s. He confirmed yesterday for the first time that he resigned in 2005 in protest of the Bush administration illegally bypassing the court altogether. Since Robertson retired, however, the court has transitioned from being ignored to wielding enormous, undemocratic power.

“What FISA does is not adjudication, but approval,” Judge Robertson said. “This works just fine when it deals with individual applications for warrants, but the [FISA Amendments Act of 2008] has turned the FISA court into administrative agency making rules for others to follow.”

Under the FISA Amendments Act, "the court is now approving programmatic surveillance. I don't think that is a judicial function.” He continued, "Anyone who has been a judge will tell you a judge needs to hear both sides of a case…This process needs an adversary."

No opposing counsel, rulings handed down in complete secrecy by judges appointed by an unelected official, and no way for those affected to appeal. As The Economist stated, “Sounds a lot like the sort of thing authoritarian governments set up when they make a half-hearted attempt to create the appearance of the rule of law.”

This scandal should precipitate many reforms, but one thing is certain: FISA rulings need to be made public so the American people understand how courts are interpreting their constitutional rights. The very idea of democratic law depends on it.