The Secret FISA Court Must Go

We are assured the secret FISA court is keeping a close eye on government surveillance, but the truth of what it has done and justified is terrifying. Law professors Christopher Sprigman and Jennifer Granick argue that the court must go.

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A government spies on hundreds of millions of its citizens. It claims the authority to engage in mass spying based on secret orders of a secret court making secret interpretations of the law. The court’s orders are themselves based on secret information about potential security threats. And while the threats are real enough, there is no evidence suggesting that more than a handful of people spied upon have any connection to any particular plot.

This scenario may sound like something from China or the pre-Glasnost communist bloc. But it’s not. It’s happening in the United States, today. Edward Snowden’s bold disclosure of classified documents informed the world about previously secret National Security Agency mass-surveillance programs that sweep up information about Americans’ emails and phone calls—as well as our communications with friends overseas—based on orders from the secret Foreign Intelligence Surveillance Court (FISC).

We published an op-ed on June 27 in The New York Times setting out why mass surveillance violates the law. Rather than respond substantively to these and similar allegations, the president and his intelligence officials have made reassuring noises, telling us not to fear, because the FISC serves as a check on the administration’s surveillance power and can be trusted to faithfully balance the government’s need to protect us from terror plots against our rights under the Constitution not to have our personal communications seized and searched. The message from President Obama and his intelligence underlings was clear: relax.

But the FISC hasn’t protected our rights at all. Instead, it has secretly gutted both the Fourth Amendment and the particular safeguards Congress put into the surveillance statutes. The FISC’s paralysis in the face of government overreaching shouldn’t surprise anyone. When you consider the court’s history, composition, and lack of public accountability, the FISC could hardly do otherwise.

The FISC was designed to secretly approve surveillance targets, not decide whether and when indiscriminate mass surveillance is consistent with our democratic principles. The secret intelligence court dates from 1978, when, in the wake of the Church Commission report documenting decades of law-enforcement misconduct against domestic civil-liberties groups, Congress reformed America’s foreign and domestic intelligence policy. As part of this effort, it passed the Foreign Intelligence Surveillance Act, or FISA, establishing the FISC and a process for classified judicial review of surveillance for foreign-intelligence purposes.

The FISC was designed to ensure that administration requests to target foreign powers or agents of foreign powers for surveillance were within the bounds of the authority Congress had established in the law. The bread and butter of the FISC was deciding whether the government had probable cause to believe that a particular person or entity was an agent of a foreign power and was likely to use a particular communications facility such that it was acceptable to spy on that person or facility to get foreign intelligence information.

That all changed following 9/11. The Bush administration, feeling enormous pressure to preempt any future terrorist attack, aggressively expanded its spying programs. When Congress eventually learned about some of these programs, it complained but then (mostly) acquiesced, passing laws to authorize most—albeit not all—of the novel surveillance activities it knew about.

Of particular import is Congress’s reaction in 2005 when the public learned for the first time that the Bush administration’s spy agencies had been intercepting Americans’ phone calls and emails without any court order or demonstration of wrongdoing. Beginning in 2006, Congress took a series of steps to revise FISA; the most current of those changes, the FISA Amendments Act (FAA), was passed in 2008 and renewed in 2012.

Section 702 of the FAA creates a new authority for targeting non-U.S. persons or groups reasonably believed to be located overseas. Under the FAA, the attorney general and the director of national intelligence jointly certify that the target is a non-U.S. person or entity reasonably believed to be overseas. The FISC reviews the certification, whether the procedures in place are reasonably designed to prevent targeting people in the U.S. or obtaining purely domestic communications, and whether the minimization procedures meet the statutory definition of minimization procedures. So long as the government reasonably believes that the target is not an American and is overseas, and it is not conducting the surveillance with the subjective intention of learning about an American (something no court could ever really review), the FISC must grant an order authorizing surveillance.

The FISC does not approve the targets, which need not be suspected of wrongdoing or be agents of foreign powers. The FISC can review applicable targeting and minimization procedures, but the court is not required to look behind the assertions made in the certification. The FISC does not approve the directives or the individuals to be monitored via those directives. Once the FISC issues its order, the government can use it for up to a year, sending top-secret directives to Internet companies like Google and Facebook specifying whose calls, emails, video and voice chats, photos, voice-over-IP calls (Skype, for example), and social-networking information it wants. The FISC trusts the government to follow the targeting procedures allowing collection of Americans’ messages and calls with friends overseas while avoiding collection of purely domestic communications. In sum, the FISC issues a blanket surveillance order whenever the government mouths the correct words—that it is collecting foreign-intelligence information relevant to a non-U.S. target. The FISC provides very little independent oversight of the surveillance itself.

The history of the FISC can be summarized very compactly. Initially the FISC was a secret court that assessed probable cause for targeted surveillance of foreign powers and their agents. After the FISA Amendments Act of 2008, the FISC mutated into a secret kangaroo court that legitimates mass surveillance of Americans’ communications with employers, friends, and family in other countries by lending it the appearance, but not the substance, of judicial oversight.

In sum, the FISC is now playing a completely new and much wider role: authorizing mass surveillance programs rather than approving specific surveillance targets. Yet it is simply impossible for the FISC, or any secret court, to decide when and how our nation should conduct surveillance consistent with our democratic principles and constitutional norms. There’s no security need for those programmatic policy decisions to be kept secret, and the secrecy ensures that the FISC will make the wrong decisions.

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Like a modern-day Star Chamber, the FISC operates “ex parte”—that is, the applications and arguments are one-sided, and only the government appears before the court. There is no one before the court to speak for the public’s interest in the privacy of its communications. And in a fight where only one side is allowed to show up, the government’s view almost always prevails. Since 2008 the administration has submitted over 8,000 surveillance requests to the FISC. Only two have been denied. The FISC has denied not a single surveillance request in the past three years. By any measure, the court is simply a rubber stamp for the executive branch.

Essential judicial oversight takes place when courts—unlike the FISC—make decisions based on arguments from both sides. In the normal Fourth Amendment context, courts issue targeted warrants based on facts demonstrating probable cause ex parte, then consider the lawfulness of the surveillance in the context of public, adversarial motions to suppress. Today, the FISC’s ex parte assessments of legal doctrine are never exposed to the adversarial process. This is why even former members of the FISA court are calling for the court to appoint independent lawyers who will challenge government applications raising novel legal issues.

As we’ve argued before, no public Fourth Amendment cases have ever authorized the kind of mass surveillance we see in the NSA’s collection of phone and email information or via FAA surveillance. But in secret rulings, FISC judges are playing the role of a shadow Supreme Court, issuing secret unreviewable opinions that are fundamentally restructuring the relationship of Americans to their government.

The substance of these secret rulings is a dramatic departure from common public understanding of the law. The New York Times recently reported that in one of the FISC’s most important decisions, the judges expanded the Fourth Amendment’s “special needs” exception, originally established in 1989 to allow warrantless drug testing of railway workers, to allow the NSA’s warrantless mass collection and analysis of Americans’ communications data for the purpose of tracking possible terrorists. A doctrine that permitted drug testing of a few workers in a safety-sensitive industry mutates to allow the government to spy on everyone, regardless of whether they have any connection to terrorism or any other public safety concern. This is an unprecedented and dubious Fourth Amendment decision, completely hidden from public review. Yet, the government has been able to sweep up all Americans’ phone and email traffic data for the past seven years based on this hidden reasoning from a secret court. In effect, an overreaching administration and a supine FISC are ginning up a secret constitution.

Relatedly, the FISC’s orders generally are signed by only one judge, which suggests that a lone individual decides whether the administration’s mass surveillance programs comply with the Constitution. Nor does it inspire confidence that all of the 11 federal judges who currently serve seven-year terms on the FISC were appointed by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. At least the Supreme Court requires five judges to agree before constitutional doctrine is set. Moreover, on the rare occasion that the government loses, it can appeal. But if the people’s Fourth Amendment rights are diminished, no one knows and no one appeals. It is a one-way ratchet downward that ends in the demise of our Fourth Amendment protections against unreasonable searches and seizures.

Perhaps most importantly, the FISC has a strong practical incentive to find a way to say “yes” to the government. The FISC conducts its review knowing that the government is heavily committed to mass surveillance already and has been for a long time. The Bush administration collected phone calls and emails in secret without a warrant for years, and both the Bush and Obama administrations sucked in phone and Internet traffic data—at first with no court orders and then on questionable legal authority. In a sense, the government has gotten away with massive violations of the law for so long that the institutional cost of reining them in now is enormous. And so the FISC—and perhaps other federal courts—will cave rather than fight.

There is historical precedent for this kind of capitulation. As Jack Goldsmith tells the story in his book The Terror Presidency, in 1942, the Supreme Court agreed to hear habeas corpus petitions challenging President Franklin Delano Roosevelt’s referral of Nazi saboteurs to military tribunals. The president told his attorney general that regardless of the court’s decision, he would never release the men from military custody to civilian authorities.

“That would be a dreadful thing,” Chief Justice Harlan Fiske Stone said when he learned that Roosevelt had threatened to execute the Nazis regardless of what the Supreme Court decided. Within a few days, the Court upheld the military commission’s legality ... The secret and juryless military court pronounced the saboteurs guilty three days after the Supreme Court announced its judgment and less than a week later six of the eight Nazis were electrocuted ... The country congratulated itself on its commitment to the rule of law throughout the six-week ordeal from capture to execution. “Even in wartime and even toward the enemy we do not abandon our basic protection of individual rights,” gushed the New Republic in a typical editorial.

The Supreme Court didn’t have the stomach to stand up to a resolute executive branch in the midst of an ongoing war and capitulated to preserve the appearance of the rule of law. And that was the constitutionally empowered U.S. Supreme Court. Today a secret court is bowing to the same pressures. But unlike in the case of the Supreme Court, we cannot even see it doing so. And unlike in World War II, we are now engaged in a ill-defined war against terrorism that may never end.

To assess the breadth and depth of this capitulation, let’s review the ways in which NSA mass surveillance violates the very statutes the administration relies on to conduct warrantless mass surveillance.

The government claims it can collect all Americans’ phone numbers dialed, time of calls, and other information, possibly including mobile-phone location, under Section 215 of the USA Patriot Act. This so-called metadata is very revealing: it can be used to map individuals’ personal relationships and political and social affiliations, and even to discover whether they see a therapist, have cancer, or cheat on their spouses.

In its current form, Section 215 allows the FBI to get an order from the FISC authorizing it to seize tangible things “relevant” to an authorized investigation to obtain foreign-intelligence information not concerning a United States person. Yet, the FISC has given the FBI an order requiring phone companies to create and disclose on an ongoing basis detailed telephone records for all purely domestic calls made by essentially every American for the past seven years.

How can a law that specifically exempts U.S. persons authorize mass surveillance of Americans? Put differently, how does the FISC issue an order under a statute that requires “relevance” to a foreign intelligence investigation, when the NSA phone records program sucks up everything?

The FISC approves these orders through legal sophistry. The New York Times reports that the FISC has created a peculiar definition of “relevance.” While individual pieces of data may not be “relevant” to any particular investigation, the total picture that the bits of data create might be relevant to some investigation. And so, the FISC orders that all the bits may be collected.

The problem with this interpretation, of course, is that it has no limit—it would allow the government to collect anything it wanted to about every American, because the composite of these many millions of bits of information would be, almost by definition, “relevant” to some investigation, in the sense that somewhere in that colossal haystack we’d find at least one needle. But there’s no evidence that Congress knew or intended to authorize the creation of a Panopticon when it passed the Patriot Act. If it had, why would it employ the concept of “relevance” in the first place? Why not just plainly authorize suspicionless mass surveillance?

As bad as the abuse of language has been in the context of the Patriot Act, it has arguably been worse under the FAA. Thanks again to Snowden, we now know that under the Prism program the NSA gets vast amounts of emails and other messages from online communications providers—including communications to, from, and between Americans. The agency also pulls information directly from fiber cables and other communications infrastructures.

Like the Patriot Act, Section 702 of the FAA gives the government very broad surveillance authority. And yet the NSA appears to outstrip that authority. In particular, the law directs that the government “may not intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.”

The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that Prism’s targeting procedures are designed to produce at least 51 percent confidence in a target’s “foreignness”—as John Oliver of The Daily Show put it, “a coin flip plus 1 percent.” And, if the government doesn’t know whether the target is U.S. or not, it is free to assume it isn’t. By turning a blind eye to the fact that 49 percent of the communications might be purely among Americans, the NSA inevitably acquires information it is not allowed to have, even under the terrifyingly broad auspices of the FAA.

Sen. Ron Wyden asked Director of National Intelligence James R. Clapper Jr. about surveillance of Americans in March of this year. Wyden gave Clapper advance notice that he would ask whether the NSA intentionally collects any kind of data on millions or hundreds of millions of Americans. The answer, of course, is “yes.” We know that NSA collects both Americans’ telephone metadata as well as a wide variety of Americans’ communications via its Prism program. Nonetheless, while under oath at a public congressional hearing, Clapper denied the existence of NSA mass surveillance programs, responding “No, sir, not wittingly” to Wyden’s question. When asked to explain this “inconsistency”—which is modern Washington-speak for a bald-faced lie—Clapper told Andrea Mitchell of NBC that the NSA uses the word “collect” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information.

Clapper’s statement is breathtakingly cynical—even for a spy. Nothing in the FAA supports this strange interpretation of the meaning of “collect” or “acquire.” And it flies in the face of the plain English definition of those words. When the NSA intercepts and records a communication, it has “collected” or “acquired” it. All the administration attempts to redefine these perfectly serviceable English words can’t change that fact.

Sadly, there are many additional examples of this sort of administration doublespeak, some of which we suspect have been approved or adopted by the FISC. According to the conventional lingo of the intelligence laws, to “target” a person or entity means to identify that individual, group, or facility as the thing about which the government seeks information. Administration officials have repeatedly issued anodyne statements assuring us that the NSA programs do not “target” Americans. This is a particularly insidious sort of lie. The statement is technically true. But the law does authorize the NSA to intentionally collect Americans’ messages so long as at least one person with whom they are communicating is overseas. Administration officials—including the president—who repeat the “target” claim do not offer it for its truth. They say it because they know that the American people, unschooled in the inside details of surveillance law, will mistakenly believe the government is not intercepting their private communications. But, in fact, the NSA is intercepting, storing, reading and listening to Americans’ private communications.

Much the same can be said about the administration’s assurances that it does everything possible to make sure that, even if an American’s private communications are mistakenly intercepted, the risk of privacy invasion will be minimized. But under the law, “minimization” doesn’t mean that the government deletes any communication suspected to involve only Americans. Rather, the NSA collects everything and only deletes a particular communication is if there is absolutely no chance that it could be relevant to foreign intelligence. Which means that a huge number of communications—probably in the millions—that the NSA never should have collected in the first place are still sitting on hard drives in the NSA’s Fort Meade, Maryland, headquarters and may never be discarded.

Given what we know now, there is zero chance that the FISC—or any secret court—can save the United States from government excess and overreaching in the name of national security. Only open public debate between our three branches of government can guide this country on the right path.

Which is why it’s time for the FISC to go. The FISC was not designed for, and has proven poorly suited to, the business of assessing the legitimacy of mass surveillance programs. It served a role back when the government was targeting specific persons and facilities. But that world is gone. Now the government collects everyone’s communications. Only a handful of people are suspected of anything, and yet all of us are enduring the invasion of our most intimate communications. Is the tradeoff worth it? Determining that question requires a public debate, which is precisely what the FISC is built to prevent.

So how do we reform the process? We should start with the FISC’s most important character flaw: its secrecy. The government says that secrecy is absolutely necessary if we’re to have effective surveillance. But we can accommodate legitimate need for secrecy while publicly debating the statutory and constitutional issues presented by mass surveillance. Obviously, specific targets should be secret, but tactics, at least at a general level, need not be. The public should know how particular surveillance programs work, at least at a high level of generality.

Next, the public and Congress need to address the monumental questions about privacy, safety and freedom in the age of so-called big data. Is mass surveillance ever OK, and if so, when? How should the Fourth Amendment apply in terrorism investigations that affect Americans’ privacy? Are phone and email metadata protected by the Fourth Amendment? How will communications with doctors, lawyers, family members, journalists, and religious advisers be protected? Should the government be allowed to collect all of our communications and then search through it later, and if so, under what circumstances with what safeguards? What uses may be made of the data once collected? Should use be limited to terrorism investigations? Or is it permissible to introduce data collected by mass surveillance into trials for everyday crimes?

These are all tough questions. But there is one thing that applies to all of them that we can say with complete confidence. Eleven unaccountable federal judges cannot make these monumental decisions in secret ex parte proceedings. These questions need to be answered via an honest and full public debate. Nothing short of our democracy is at stake.