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Saturday, February 22, 2014

FISA, the NSA, and America's Secret Court System - Ben O'Neill

Mises Daily: Saturday, February 22, 2014 by Ben O'Neill
[This article is part of a series. See Edward Snowden, the NSA, and the US Courts.]

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 Court[1] 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]