Fixing what ails the FISA

Immediately after last year’s Snowden disclosures about NSA’s collection, with approval from the Foreign Intelligence Surveillance Court (FISC), of telephone metadata, Congress appeared determined to mandate significant changes in intelligence gathering activities. The reforms to the Federal Intelligence Surveillance Act (FISA) Congress may be about to implement are less than needed to enhance judicial oversight and public confidence in the FISC.

The House-passed “USA Freedom Act” would require appointment of an “amicus curiae” (friend of the court) when “in the opinion” of the FISC an application raises a “novel or significant interpretation of the law.”

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An amicus represents no one. Instead, an amicus participates solely for the court’s benefit. This will not achieve true reform, which requires appointment of an attorney to represent the target (whether the target is an individual, group, or the public at large). Unlike an amicus, an attorney would have standing on behalf of the target to appeal to the Foreign Intelligence Surveillance Court of Review.

Oversight of the FISC is a judicial, not a legislative function: appellate courts alone oversee and control the work of lower courts. Failure to appoint counsel for the targets will silence the advocate’s voice when it most must be heard – on appeal. Enabling adversarial appellate review is crucial to increased confidence in the FISC and its work.

If Congress is unwilling to authorize counsel before the FISC, it should consider an alternative procedure to enable appellate review of decisions adverse to targets’ privacy interests: namely, authorizing the FISC, on application by the amicus, to certify questions for FISCR review. That Court, on accepting an appeal, should also have authority to appoint the amicus to brief and argue on the target’s behalf. Under this approach appellate review is uncertain, but more possible than under the House bill.

Another defect in the House bill is that it leaves appointment to the discretion of individual FISC judges, who might differ in similar circumstances as to the need for appointment. Congress can easily eliminate that risk by requiring appointment whenever the government, as Rule 11 of the FISC Rules of Procedure requires, notifies the Court that an application raises an issue not previously presented to the Court.

Using FISC Rule 11 as a trigger would ensure appointment when an application involves new surveillance methods. Both new legal issues, as in the House Bill, and new technological issues, as allowed under Rule 11, equally deserve full hearing before the FISC.

The House bill improperly gives the executive branch exclusive authority to determine whom the FISC may appoint. To ensure public confidence in the independence of the appointee the FISC should control the appointment decision. Alternatively, the Privacy and Civil Liberties Oversight Board or some other independent agency might select the appointee.

Another important change, publication of FISC opinions, can inform the public about and increase its confidence in the Court’s work.  While most FISC applications are routine, and opinions are quite few, when FISC judges do write their pronouncements, at least on matters of law, it should become known.

The House bill takes a half step by authorizing the Attorney General to declassify and permit publication of FISC opinions. To maximize public awareness of and confidence in the Court’s handiwork, it should play an active role in deciding what it may, without endangering national security, publish. The Court may have inherent authority to issue an order to the government to show cause why publication should not occur. Even if so, Congress should expressly authorize the court to do so. Following a hearing on the government’s objections, with counsel (or amicus) for the target likewise participating, the FISC can decide what the public properly can learn. Appellate review should thereafter be available.

The House version of the USA Freedom Act needs reconsideration and revision. Each of my proposed reforms is simple, easy to implement, inexpensive, and should be noncontroversial. These changes can improve oversight, especially by the FISCR, and in that and other ways enhance confidence in the FISC. Most importantly, with these changes, Congress will enhance our constitutional right, in the words of Justice Louis D. Brandeis, “to be left alone.”

Carr is a federal district judge for the United States District Court for the Northern District of Ohio.  He was a FISC judge from 2002 to 2008, appointed by former Chief Justice William Rehnquist.