Reforming the FISA Court

The Brennan Center has a long report on what's wrong with the FISA Court and how to fix it.

At the time of its creation, many lawmakers saw constitutional problems in a court that operated in total secrecy and outside the normal "adversarial" process.... But the majority of Congress was reassured by similarities between FISA Court proceedings and the hearings that take place when the government seeks a search warrant in a criminal investigation. Moreover, the rules governing who could be targeted for "foreign intelligence" purposes were narrow enough to mitigate concerns that the FISA Court process might be used to suppress political dissent in the U.S. -- or to avoid the stricter standards that apply in domestic criminal cases.

In the years since then, however, changes in technology and the law have altered the constitutional calculus. Technological advances have revolutionized communications. People are communicating at a scale unimaginable just a few years ago. International phone calls, once difficult and expensive, are now as simple as flipping a light switch, and the Internet provides countless additional means of international communication. Globalization makes such exchanges as necessary as they are easy. As a result of these changes, the amount of information about Americans that the NSA intercepts, even when targeting foreigners overseas, has exploded.

Instead of increasing safeguards for Americans' privacy as technology advances, the law has evolved in the opposite direction since 9/11.... While surveillance involving Americans previously required individualized court orders, it now happens through massive collection programs...involving no case-by-case judicial review. The pool of permissible targets is no longer limited to foreign powers -- such as foreign governments or terrorist groups -- and their agents. Furthermore, the government may invoke the FISA Court process even if its primary purpose is to gather evidence for a domestic criminal prosecution rather than to thwart foreign threats.

...[T]hese developments...have had a profound effect on the role exercised by the FISA Court. They have caused the court to veer off course, departing from its traditional role of ensuring that the government has sufficient cause to intercept communications or obtain records in particular cases and instead authorizing broad surveillance programs. It is questionable whether the court's new role comports with Article III of the Constitution, which mandates that courts must adjudicate concrete disputes rather than issuing advisory opinions on abstract questions. The constitutional infirmity is compounded by the fact that the court generally hears only from the government, while the people whose communications are intercepted have no meaningful opportunity to challenge the surveillance, even after the fact.

Moreover, under current law, the FISA Court does not provide the check on executive action that the Fourth Amendment demands. Interception of communications generally requires the government to obtain a warrant based on probable cause of criminal activity. Although some courts have held that a traditional warrant is not needed to collect foreign intelligence, they have imposed strict limits on the scope of such surveillance and have emphasized the importance of close judicial scrutiny in policing these limits. The FISA Court's minimal involvement in overseeing programmatic surveillance does not meet these constitutional standards.

[...]

Fundamental changes are needed to fix these flaws. Congress should end programmatic surveillance and require the government to obtain judicial approval whenever it seeks to obtain communications or information involving Americans. It should shore up the Article III soundness of the FISA Court by ensuring that the interests of those affected by surveillance are represented in court proceedings, increasing transparency, and facilitating the ability of affected individuals to challenge surveillance programs in regular federal courts. Finally, Congress should address additional Fourth Amendment concerns by narrowing the permissible scope of "foreign intelligence surveillance" and ensuring that it cannot be used as an end-run around the constitutional standards for criminal investigations.

Just Security post -- where I copied the above excerpt. Lawfare post.

Posted on March 24, 2015 at 9:04 AM • 15 Comments

Comments

jonesMarch 24, 2015 9:41 AM

The 2008 FISA amendment basically legalized many of the activities the original law was passed to prevent:

https://en.wikipedia.org/wiki/Foreign_Intelligence_Surveillance_Act_of_1978_Amendments_Act_of_2008#Provisions

This is where the ex post facto "retroactive immunity" for telecoms was put into place.

A brief perusal of the table of contents for the Church Committee Report on Intelligence Activities and the Rights of Americans makes pretty clear the implications of the 2008 FISA amendment. The Table of Contents starts about 11 pages in and runs for a few pages:

http://www.intelligence.senate.gov/pdfs94th/94755_II.pdf

The Church Committee was a congressional investigation that led directly to the passage of FISA in the 1978. In 2008, congress -- with the benefit of classified briefings -- moved directly in the opposite direction.

The larger issue is that these types of clandestine organizations are fundamentally at odds with formal democracy, which relies of the consent of a well-informed electorate.

The bad news probably began in the 1940's, when we started buying up surplus Nazi scientists like Werner von Braun:

https://en.wikipedia.org/wiki/Operation_Paperclip

By the 1950's, it was clear that the Army was already violating the Nuremburg Code against human experimentation:

https://en.wikipedia.org/wiki/Nuremberg_Code

by exposing soldiers to chemical agents and radiation:

http://www.publichealth.va.gov/exposures/edgewood-aberdeen/index.asp

and by the 1960's, the CIA was clearly violating the Nuremburg code conducting drug experiments on unwitting civilians:

https://en.wikipedia.org/wiki/Project_MKUltra

including the Unabomber:

http://www.theatlantic.com/magazine/archive/2000/06/harvard-and-the-making-of-the-unabomber/378239/

In the 1970's the Church Committee pushed back against these undemocratic, illegal, clandestine activities, though it is clear that, beyond the 2008 FISA amendments, many of the safeguards put in place have broken down.

Consider for example, the Army's use of mefloquine -- an antimalarial drug that can induce psychosis, and which was originally developed for the CIA -- on Guantanamo detainees:

https://law.shu.edu/ProgramsCenters/PublicIntGovServ/policyresearch/upload/drug-abuse-exploration-government-use-mefloquine-gunatanamo.pdf

or the use of medical professionals to develop special saline solutions to prevent infections from repeated CIA water torture:

http://www.nature.com/news/2010/100607/full/news.2010.284.html

We also know the position of the executive office on these matters: let the torturers go, prosecute whistleblowers:
a
http://www.thenation.com/article/169860/protecting-torturers-prosecuting-whistleblowers

Everything Bush did illegally, Obama has helped make legal.

JoeMarch 24, 2015 9:47 AM

Re: "Fundamental changes are needed to fix these flaws."

No es possible'. Not gonna' happen. It's Humpty-Dumpty-ville for private and secure electronic communication.

The few laws passed relevant to the Snowden Revelations have only made mass surveillance more legal, more fundamental, more impossible to resist.

albertMarch 24, 2015 10:16 AM

@jones

"...Obama has helped make legal. ..."
.
No, the Prez can't override the Constitution. It's all illegal, until the Constitution is amended.
....

Clive RobinsonMarch 24, 2015 10:54 AM

The first step that is required, is mandatory prosecution of senior "directing minds" with mandatory sentances, with no statue of limitations or pardons, and removal of all pensions or other benifits, even if they die prior to prosecution...

Only when the idiots in charge know that the consiquences on them and their families will be long and hard for pushing the boundries let alone breaking the law will they stop doing it.

Whilst I'm not in favour of the "Utah Solution" [1], it might focus a few minds, especialy if juniors can plee bargin out their bosses to dodge a bullet.

[1] http://www.bbc.co.uk/news/world-us-canada-32027751

65535March 24, 2015 12:02 PM

“…the [FISA] court provides a veneer of judicial oversight for surveillance activities, blessing mammoth covert programs without hearing from those affected by them.” –brennencenter

https://www.brennancenter.org/sites/default/files/analysis/What_Went_%20Wrong_With_The_FISA_Court.pdf

That is an understatement. The Judges on the FISA court are just “stamp monkeys” who rarely disapprove any activity of the NSA.

The FISA court purposely allows 5 billion geo-locations of phones to be collected daily along with the so called “meta data” which include a wide swath of US citizens.

The FISA court allows American communications to be routed around the globe to countries which don’t follow US laws and can listen to the raw data over the wire [fiber cable]. These actions destroy the intention of the Fifth Amendment and other US constitutional rights of American citizens.

In conclusion, the FISA Court merely “runs interference” for an “Agency” that has grossly exceed its boundaries; is actually harming American business and has run a muck.

SasparillaMarch 24, 2015 2:16 PM

Great article - wish it was remotely plausible the House/Senate would do such a thing. The plausible action I could see the House/Senate doing at this point would be to try to legalize (further) widespread intelligence gathering of U.S. citizens (cause terrorist's and who wants to pull all that back when the next Boston could be around corner and have that vote on your record...).

Seemed like neither Republicans nor Democrats (except for a few intelligent folks in both parties) want to do anything other than push the throttle's up on the powers of the surveillance state.

@albert I think @jones was referring to the fact that after getting into power President Obama didn't throw out all the surveillance garbage, but instead doubled down on it and allowed it to become the "new normal" - making it much harder to be removed from our government structure going forward (a true tragedy for our country in every sense of the word).

Coyne TibbetsMarch 24, 2015 7:14 PM

Waste. Of. Time. (I accidentally posted this to another thread, now I have to add this to make it unique.)

I worked on a proposal for this very problem. I won't waste many words on it: the short-short version is that it was an ombudsman scheme to give opposition representation in FISC cases.

The idea foundered on the same problem with the court itself--capture of the ombudsmen.

The security apparatus will demand to vet anyone before allowing them access. If a way around that is found, then the security apparatus will shut them out of the process. Any attempt that is made to overcome that must fail because there is no way to enforce that which DOJ will not enforce.

The bottom line is that judges--and any imagined ombudsmen--will always be captive to the security apparatus. Given that, "fixing" FISC is an exercise in futility.

BillFitzMarch 25, 2015 9:42 AM

If, as it seems, the collection process cannot be limited, is it possible to consider how to disallow the use of the collected information or the information derived from the collected information in a prosecution? The leverage offered by the use of the collected data would be reduced, it seems, and this could force normal, controlled investigations that are legal to proceed.

DaveMarch 25, 2015 10:59 AM

The FISA court couldn't really put a check on unlawful surveillance of Americans, because the three-letter agencies had an alternative if they didn't think the FISA court would say "yes":
1. Go ahead and spy anyways (they're already allowed to do this up to 3 days before they get approval).
2. Keep everything classified.
3. Don't bother telling the FISA court what they're doing.
4. Use whatever information you get for something other than a criminal trial.

I have no doubt that the staggeringly high approval rates for FISA warrants (they've rejected fewer than 10 wiretap requests since the courts' inception) was at least partially the result of this alternative procedure.

ScaredMarch 25, 2015 12:25 PM

@Jones
From your list it sounds like we bought Dr. Mengele as well (but were smart enough to give him new identity).

Dirk PraetMarch 25, 2015 9:29 PM

@ Clive

Whilst I'm not in favour of the "Utah Solution" ...

Tarring and feathering, on the other hand ... Then again, this may be considered as a form of cruel and unusual punishment in a country that's OK with execution by firing squad.

Leave a comment

Allowed HTML: <a href="URL"> • <em> <cite> <i> • <strong> <b> • <sub> <sup> • <ul> <ol> <li> • <blockquote> <pre>

Photo of Bruce Schneier by Per Ervland.

Schneier on Security is a personal website. Opinions expressed are not necessarily those of IBM Resilient.