(The National Law Journal)
By Rep. Adam Schiff (D-CA)
Published Monday, August 12, 2013
Lost in the tumult surrounding the National Security Agency surveillance program is the imperative of overseeing the intelligence community to ensure it operates effectively — while respecting the privacy and civil liberties of Americans.
Much of the quotidian work has fallen to the little-known Foreign Intelligence Surveillance Court (FISC), but the institutional framework under which it operates needs rethinking after more than three decades.
The Church Committee, established in 1975 to investigate intelligence abuses, recommended the creation of a court to oversee government intelligence agencies. The FISC was established with that thought in mind — to review surveillance requests to ensure they stayed within the bounds of the statute and the Constitution.
For most of its existence, the court's docket consisted of cases that resembled traditional criminal wiretaps. These applications were made ex parte and were directed at a particular individual or organization. However, since the 2001 terrorist attacks, the court has heard a range of new types of applications that have gone beyond targeted surveillance to encompass the collection of enormous amounts of information, including domestic data.
As a result, the FISC now hears arguments and requests that are far more complex, resembling in many respects the types of statutory interpretation and analysis done in traditional Article III courts. Yet the court hears these cases in a fashion entirely unlike a regular court — in total secrecy and without the benefit of an adversarial process.
While the FISC's responsibilities have grown, Congress has not updated the court itself to put in place new procedures to allow it to function in a rigorous and more transparent fashion. The secrecy necessary in the court means it will never operate in precisely the same way as a traditional court, but sensible reform can be made to serve as a credible check on overreaching surveillance requests.
First, we should let some sunshine into the FISC's chambers. Nearly everything about the court remains highly classified. Sources and methods of intelligence gathering must be protected, but the legal reasoning of the court can, and should, be up for public review once it has been disentangled from classified information.
I have introduced bipartisan legislation that would require the U.S. attorney general to declassify opinions that contain significant interpretations of law or issues of constitutional dimension. The Obama administration has already taken steps toward declassifying certain orders and opinions. However, it's important to put in place a prospective requirement to ensure that the commitment to transparency transcends administrations.
Next, Congress should reform the way judges are appointed to the FISC. Currently, the chief justice of the United States appoints all 14 judges who make up the FISC and the Court of Review from among federal circuit court judges. Though Chief Justice John Roberts doubtlessly takes this charge seriously, a single decision-maker does not lend itself to an ideologically diverse court. Instead, we need a more open appointment process that allows for checks and balances.
I have introduced legislation that would require FISC and the Court of Review judges to be nominated by the president and confirmed by the Senate. For all its controversy, the confirmation process provides a vital opportunity for senators and the public to review candidates who will be ruling, in total secrecy, on issues with broad significance. Given the FISC's jurisdiction and the importance of having a full roster of judges, I believe that the Senate would act in an expeditious fashion to confirm appointees, especially as prospective FISC judges will have already gone through the confirmation process before.
Finally, the FISC needs to hear from someone who can speak to the privacy interests of the American people, and not only government attorneys. Judge James Carr, who was a member of the FISC from 2002 until 2008, recently argued that the judges on the court, and the public writ large, would benefit if opposing counsel could participate in certain cases. As Carr noted, in no other setting are judges asked to rule on complex and novel issues involving statutory interpretation, constitutional considerations and new technologies while only hearing one side of the argument. Federal judges are experienced and intelligent, but they are not omniscient, and their rulings would benefit from hearing more than one perspective.
I am introducing legislation that creates a procedure for an independent, nongovernmental "public interest advocate" to participate in certain cases before the FISC. My bill vests the Privacy and Civil Liberties Oversight Board with the authority to appoint a pool of attorneys to represent the public interest in significant cases before the court. Once appointed to a case, attorneys would participate fully in the proceedings with the opportunity to respond to government arguments and motions. Perhaps most importantly, they could appeal decisions to the Court of Review, or even to the U.S. Supreme Court.
The national conversation about NSA surveillance programs is long overdue, and I agree with the president — we should welcome the debate. There will always be a need for collecting signals intelligence to protect our nation, and there will always be a risk of overreaching. The technologies and targets will change, but a rigorous and demanding process at the FISC should remain.
Congress should prioritize reforms to the FISC that are durable, practical and meet our national commitment to privacy and individual freedom.
[Representative Adam Schiff (D-California) serves on the House Intelligence Committee and is a former federal prosecutor.]