FISA Court Does Job Congress Assigned It

Don't blame "secret courts" for the government's expanded spying on American citizens and allies.

FISA-Court-Petition

A widely circulated report by Eric Lichblau of the NYT, “In Secret, Court Vastly Broadens Powers of N.S.A.,” misunderstands how our system works.

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

[…]

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

While President Obama and his intelligence advisers have spoken of the surveillance programs leaked by Mr. Snowden mainly in terms of combating terrorism, the court has also interpreted the law in ways that extend into other national security concerns. In one recent case, for instance, intelligence officials were able to get access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.

In the past, that probably would have required a court warrant because the suspicious e-mail involved American communications. In this case, however, a little-noticed provision in a 2008 law, expanding the definition of “foreign intelligence” to include “weapons of mass destruction,” was used to justify access to the message.

Now, I find all of this worrisome. But Lichblau assigns agency to the wrong body; the FISA Court is simply doing the job specifically assigned to it by Congress in 1978 and vastly expanded in 2008. The problem isn’t that we have some secret Star Chamber taking away our freedoms but that our elected representative continually trade away our liberty in hopes of gaining a small measure of additional security. And the US Supreme Court has generally gone along with that for decades, interpreting both the 4th Amendment protections against unreasonable searches and the 5th Amendment protection against self-incrimination as narrowly as possible.

The FISA Court itself is a necessity if we are to maintain both secrecy in the conduct of intelligence operations and some independent judicial oversight. We have all manner of specialized courts that deal with narrow fields outside the scope of ordinary law: bankruptcy, taxation, international trade, federal claims, veterans appeals, alien terrorist removal, and matters stemming from enforcement of the Uniform Code of Military Justice.  It stands to reason that we’d have one dealing with foreign intelligence, which is not only highly complicated but requires extreme discretion.

Nor do the rulings described here strike me as in any way outlandish in light of 4th Amendment precedents long since established by the Supreme Court. I’d much rather have the federal government have the right to store and scan the metadata from my phone calls—at zero inconvenience to me or intrusion into my life—than hassle me every time I want to fly somewhere, much less stop traffic for hours on end in a fishing expedition for drunk drivers. Local police officers can stop you pretty much at any time and in any public place to conduct a pat down search on the thinnest of pretexts; the likelihood of them doing so depends on your neighborhood and the color of your skin. And it’s been established for decades—by the US Supreme Court, not the FISA Court, and long before 9/11—that phone records and the like are not private information subject to the strictures of the 4th Amendment; only the content, not the fact, of the calls is considered private.

Similarly, the notion that the FISA judges are issuing broad rulings, establishing precedent for types of operations rather than reviewing individual petitions, is hardly unusual. It is both a court of original jurisdiction and an appellate court. It stands to reason that it would over time establish a sort of common law to guide the decision-makers in the intelligence community as to what sorts of surveillance it can and can not conduct.

Finally, it’s worth noting that the FISA Court is subordinate to the US Supreme Court. To be sure, given its secretive nature, this is more theoretical than practical. It’s not obvious to me as a non-lawyer and non-insider who exactly has the standing to appeal its decisions. But, presumably, members of the Congressional intelligence oversight committees—the only outsiders with knowledge of the court’s rulings—who strongly object to decisions they consider overly broad or in violation of the Constitution could in fact petition for certiorari.

FILED UNDER: Intelligence, Law and the Courts, National Security
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. michael reynolds says:

    You’ve noticed just how quiet Congress has been about the whole NSA thing? It’s either a bi-partisan failure to do their job, or a bi-partisan consensus that things are fine the way they are, take your pick. Whenever I see someone claiming there’s no independent oversight I say, “Congress?” Not surprisingly many people respond with, “Oh, yeah, I forgot they had actual duties and all.” Understandable.

  2. JohnMcC says:

    I read that piece this morning, being one of those folks who get the blue-bagged newpaper tossed onto my ‘heartland’ lawn every sunday. And agree that it is informative and authoritative in a way that the NYT is when it is being it’s usual good ‘newspaper of record’ self. So thanks for the lengthy rehash.

    The aspect of the FISA Court that seems most noteworthy to me is that the 11 justices (all federal appellate judges) are appointed for varying lengths of service by the Chief Justice of the Supreme Court, without any oversight. An immense increase in that one person’s impact.

    Wish there was some sort of more ‘democratic’ process.

  3. James Joyner says:

    @michael reynolds: Yup. See my piece for The Atlantic from June 13 titled “Why Should Congress and the Courts Care About Snooping If Citizens Don’t?“

    @JohnMcC: Again, there’s Congress. And all three branches have their hands in this. The president initiates or at least has visibility over the initiation of the process. Congress not only passed FISA but two intelligence committees have oversight. And FISA judges are honest to God federal judges who’ve been vetted through the process. I’m not sure how to get more “democracy” into the scrutiny of things that are by their nature state secrets.

  4. Tyrell says:

    The problem is that there is now a whole level of agencies, bureaus, and departments that Congress has given almost unlimited powers to. Some of these agencies are secret and unknown even to Congress. So that eliminates oversight and monitoring. Some members of Congress could even be targets of the spying, wiretapping, mail searches, tracking, and tailing. This is far larger and more reaching than people have thought. Probably too much now to reign in. How do you abolish agencies that no one knows about?

  5. refn says:

    @michael reynolds:

    Trusting congressional oversight in this matter, as in so many others, is akin to entrusting a group of militant arsonists with oversight at a fire department.

  6. Armando says:

    There is no textual support in the law for your headline. I think you are clearly incorrect.

  7. Armando says:

    Also your discussion of standing is incorrect.

  8. Armando says:

    Finally ur discussion of the FISA courts jurisdiction is flawed. The FISA court is not an art III court. It’s jurisdiction is precisely that provided by law – to review warrant applications for foreign intelligence that touches Us and US persons. These rulings step far outside that jurisdiction S they pass on programs not particularized warrants.

  9. stonetools says:

    @James Joyner:

    The problem is NOT that Congress is “at fault”. The problem is that the American people are pretty much OK with the current regime. Now this grates on the nerves of civil libertarian absolutists, but the American people have accepted the current liberty-for security tradeoff-at least until it can be shown that anyone is harmed by it-which the civil libertarians haven’t been able to show.
    Now the present scheme isn’t perfect, and may be tweaked a bit. In particular, the FISA judges have urged that the legal justifications for their decisions be made public. I think that Congress may allow this.
    But the American people do not want the current system dismantled or substantially changed. Sorry , Greenwald, Snowden, et al.

  10. David in KC says:

    There has always been an “easy” fix to this, Congress can change the rules. They can add a layer of approval to picking the judges, like the confirmation process already in place for selecting federal judges, but maybe just use the intelligence committee for it or something. They can pass a law amending the patriot act to specifically reduce the ability of the NSA etc to obtain warrants. They can change the burden of proof that the court uses to grant warrants. They can add specific rules allowing congress to appeal warrants to the Supreme Court. There are lots of things that could be done. But right now, the system is working as intended.

    I, personally, would love to have the process tightened up and put in more safe guards, but suggesting that the NSA is operating outside the law is incorrect. Congress gave the NSA and other organizations to access this data through warrants issued by the FISA court. Don’t like it? Elect representative and senators who will change it. Elections have consequences and statutes passed in the heat of the moment sometimes result in things you don’t like. Unless you voiced concerns when the patriot act was first passsed (which, btw, I did and contacted my elected representatives at the time and let them know I didn’t like it) and did the same thing each time it came up for a vote, then you only have yourselves to blame for where we are at today. As long as the process exists, and federal judges approve the warrants, it’s all perfectly legal and constitutional.

  11. OzarkHillbilly says:

    As one who rolls his eyes at every latest revelation which I always greet with a resounding “Duuuhhh…” I have to say to this:

    Similarly, the notion that the FISA judges are issuing broad rulings, establishing precedent for types of operations rather than reviewing individual petitions, is hardly unusual. It is both a court of original jurisdiction and an appellate court. It stands to reason that it would over time establish a sort of common law to guide the decision-makers in the intelligence community as to what sorts of surveillance it can and can not conduct.

    The problem with the FISA court is that our entire system of judiciary is dependent upon the “adversarial system” to keep them honest. But there is no possible way to insert adversarial checks and balances within the national security apparatus. Most cases filed against the national security state are thrown out for a lack of standing (you have to prove your phones are bugged before you can challenge the bugging of your phones) and the suits that survive that seem to inevitably get thrown out of court under the State Secrets Doctrine. So you have the NSA, the CIA, and whatever other alphabet soup agencies there going to FISA and getting what they want because nobody ever pushes back.

    And Congress has become so dysfunctional it is incapable of proper oversight or pushback and it is the agency that HAS to do it. I am not hopeful.

    @Tyrell:

    Some of these agencies are secret and unknown even to Congress.

    That is tinfoil hat territory there Tyrell. If certain members of the proper congressional oversight committees don’t know of them, it is thru will full blindness, nothing more, which make no mistake, will full blindness is quite common within the hallowed halls of Congress, but that is not a conspiracy.

  12. David in KC says:

    @Armando: and the law, as it exists today allows the NSA to collect information that doesn’t touch US citizens without a warrant. We don’t attach constitutional protections to non-citizens outside the US. Once again, don’t like it? Elect other people to congress. This whole thing requires at least 2 branches of government to agree, and in the case of FISA warrants, all three.

  13. stonetools says:

    @David in KC:

    I, personally, would love to have the process tightened up and put in more safe guards, but suggesting that the NSA is operating outside the law is incorrect. Congress gave the NSA and other organizations to access this data through warrants issued by the FISA court. Don’t like it? Elect representative and senators who will change it. Elections have consequences and statutes passed in the heat of the moment sometimes result in things you don’t like

    BINGO.Note that House Democrats opposed the re-authorization of the Patriot Act by a 2-to1 margin last time in 2011-even though the President was a Democrat. Let that guide your voting choices.

    @OzarkHillbilly:

    Most cases filed against the national security state are thrown out for a lack of standing (you have to prove your phones are bugged before you can challenge the bugging of your phones) and the suits that survive that seem to inevitably get thrown out of court under the State Secrets Doctrine

    Congress can fix all of this. Guess what, the public doesn’t want them to. Where are the tri-cornered hat guys in the streets and in the town halls calling on Congress to deal with this encroachment on our liberty ? Oh yeah, they are if anything in favor of the current regime.

  14. Jeremy says:

    @stonetools: Tell that to the people who get felt up & sexually molested in airports and visibily humiliated by TSA “agents.”

  15. michael reynolds says:

    I believe I’ve gone through TSA checkpoints at least two dozen times in, say, the last 18 months. Number of times I’ve had any trouble? Zero.

    It’s not the agents I have trouble with, it’s whatever dimwits still haven’t figured out minimal efficiencies in terms of lines, plastic buckets. tables, etc… That and civilians who are just too baffled by the concept of putting their lotion in a damn Ziploc.

    Pro Tip for TSA: Don’t be a dick to them and they almost certainly won’t be a dick to you.

  16. David in KC says:

    @michael reynolds: Absolutely. It’s really not that difficult to know what the rules are ahead of time. And if in doubt, check it, or call the airline e and ask. I have to carry syringes with me for medical purposes and just follow the guidance and have the prescription stuck to my travel bag. Mention that I have thm and where the script is and sail on through.

  17. Armando says:

    @David in KC: non US or US person surveillance does not require FISC intervention at all. That’s not what is at issue here.

  18. David in KC says:

    @Armando: I apparently misunderstood your comment. How, exactly are the FISA rulings outside the authorization of the patriot act? They get warrants to gather the data and they gets separate warrant to look at/use the data. As broad as the patriot act is,this appears to be within the scope of it.

  19. Armando says:

    @David in KC: the warrants to gather are not particularized and illegal IMO. But the bigger problem is 702 and PRiSM like dragnets that do not have warrants at all.

  20. David in KC says:

    @Armando: Maybe I have misread some of the info on PRISM, but my understanding is it involves a two step warrant process, one to gather the data and one to use it. As to your opinion on the legality of the warrants, apparently the judges involved think they are, and the intelligence committees, who are briefed on the programs, seem to think they are. As I stated in another thread, I think they should revise the way the judges are selected, and as I have stated in this thread, I think they should amend the patriot act and reign in these warrants. But it doesn’t appear to be illegal and the solution is political, not judicial.

  21. Armando says:

    @David in KC: you’re mistaken on PRISM. There are no additional warrants or any warrants at all. Just a review of minimization procedures.

    You are also mistaken on the SenAtors. See Wyden and Udall. Not even Feinstein argues much except TERRORism!!

  22. Jeremy says:

    @michael reynolds:

    Oh, okay, so because you haven’t had any problems, the entire system is a-ok.

    And here I thought we libertarians were the selfish ones who didn’t care about other people.