Has the FISA Court Gone Too Far?

In the wake of the Snowden leaks, the Foreign Intelligence Surveillance Court (FISC) has come under intense public scrutiny for its central, but often little understood, role in determining how the government collects and examines information on its citizens. Some legal scholars have criticized the top secret court for providing intelligence agencies overly expansive authority to monitor Americans as well as consistently signing off on federal surveillance requests. CFR’s Matt Waxman says it’s difficult to assess the court’s interpretations of the law because its opinions are classified. He says that while he understands the court’s demands for secrecy, he is "very concerned about the idea of secret law." However, he believes "the characterization of the FISA process as a ’rubber stamp’ is inaccurate," explaining that U.S. officials rarely go to a FISC judge without a strong case.

The Foreign Intelligence Surveillance Court operates out of the E. Barrett Prettyman U.S. Courthouse near Capitol Hill in Washington, DC. (Photo: Courtesy Wikimedia)

For starters, how does the Foreign Intelligence Surveillance Court fit into the U.S. national security apparatus, and how has it evolved since September 11?

The Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures, has been interpreted to generally require a warrant from a judge--backed up by probable cause--before the government can listen in on calls in the United States. Until the late 1970s, the prevailing legal view was that this warrant requirement did not apply to so-called foreign intelligence collection, meaning things like espionage or collecting military secrets or many other kinds of national security information. But after the abuses of domestic spying came to light in the 1970s, Congress passed the Foreign Intelligence Surveillance Act, which established a special court, the Foreign Intelligence Surveillance Court (FISC), to regulate many kinds of foreign intelligence surveillance conducted in the United States.

For example, rather than having to show a regular judge that there was probable cause to believe that the target of surveillance has committed a crime, the government would have to show a FISC judge that there was probable cause to believe that the target was working on behalf of a foreign power, which includes international terrorist organizations.

However, several reforms to the law occurred after 9/11. The first was that Congress made it easier in some ways for the government to get FISA warrants. So we’ve seen an increase in the workload of the Foreign Intelligence Surveillance Court, more requests for FISA warrants, and more of them being issued. The second major change was that Congress required FISC to review not just these sorts of individual warrant applications that are specific to particular people or places, but also in some cases to review the legality of entire surveillance programs.

Many legal scholars have recently criticized the court for its interpretations of surveillance law, which underpin some of these controversial NSA programs leaked by Snowden. What’s your sense of this?

It’s hard to know for sure because the court’s opinions are secret, but the FISC has probably interpreted some terms of congressional surveillance authorization very broadly. For example, the authority to collect certain types of records that are "relevant" to a terrorism investigation--that has reportedly been interpreted to allow for collection of vast data sets.

However, there seems to be a split in views. Some members of Congress are saying that when they passed the statute authorizing these surveillance powers, they never intended something so broad. On the other hand, government officials point out that many members of Congress have known for a long time what’s going on and they haven’t raised complaints.

Why are there different legal standards for search and surveillance in the national security context versus the criminal justice context?

Historically, this started with some distinctions that the executive branch had been asserting that, outside of the criminal justice context, the government had a very broad authority to conduct warrantless surveillance in the name of national security or foreign intelligence. A number of courts in the United States agreed over the years with the executive branch that when it comes to foreign intelligence surveillance, the normal warrant requirements of the Fourth Amendment don’t apply.

But following the Church Committee in the 1970s, Congress tried to fill that gap, effectively saying that "even if the Constitution doesn’t require a warrant, we Congress are going to establish a special court and require that the executive branch get a warrant for at least some of these foreign intelligence surveillance activities." So it is really a product of [FISA] and successive amendments to that statute that have created different types of court review and different substantive standards for different kinds of intelligence and surveillance activities.

Is it fair to say that constitutional protections are weaker in this national security context?

As in many areas of the law, when it comes to dealing with national security threats, especially foreign threats, the executive branch is given more constitutional latitude to take action.

Some critics have characterized FISC as a rubber stamp, citing the fact that the overwhelming majority of surveillance requests by the Justice Department have been approved; reportedly all requests were approved last year. Given that this is a non-adversarial system--no one arguing the other side--do you think this is balanced, workable?

I don’t think the characterization of the FISA process as a "rubber stamp" is accurate for several reasons. First of all, warrant requests are always ex parte (i.e., non-adversarial), and most regular warrants are approved in the criminal justice context as well. The reason being that government agents don’t usually go to a judge at all unless they are quite confident that they have solid grounds for a warrant.

Second, most of the scrutiny of FISA warrant requests occurs well before they even go to the Foreign Intelligence Surveillance Court, in the form of intense and high-level vetting within the executive branch and the Justice Department. And third, the government is able to maintain a high success rate of approvals in the Foreign Intelligence Surveillance Court because it protects its credibility with that court by not bringing weak applications.

Do you think that the court’s proceedings, which are classified, should be opened up to the public so that people like yourself, others in the legal community, and the general public can debate the merits of the court’s actions?

This is a tough issue. I’m very sympathetic to the government’s need to protect the secrecy of intelligence sources, methods, targets, etc., but I’m also very concerned about the idea of secret law. It’s not always possible to pry those things apart--to be transparent about the details of legal interpretations without also exposing information about intelligence activities themselves. There is a middle ground here, which is to ensure that Congress has adequate information to know how its own laws and statutes are being interpreted so it can make adjustments to them as necessary or impose new legal protections if desired.

What, if any, reforms would you recommend?

The Foreign Intelligence Surveillance Court is only one of several checks on government surveillance power. It’s better to think of oversight in this area as layered. In addition to FISC, you have, for example, internal executive branch legal oversight, you have inspectors general from the various departments and agencies, and you have congressional oversight, all operating together.

In terms of reform, we need to focus heavily on some of these other forms of oversight, especially inspectors general and congressional oversight, because those mechanisms, those bodies, can take a broader view of not just the legality but the policy effectiveness of surveillance programs and because they can audit intelligence programs to assess how they have been operating and practiced.

Where do you see this debate headed, if you were to prognosticate? Do you think there will be procedural changes? Statutory changes?

This is very hard to predict, and the American public has been somewhat fickle when it comes to its views of surveillance powers and the appropriate balance of privacy and security. In some ways, the latest disclosures of vast surveillance powers are just a slice of a much broader issue. New communication technologies, information analysis technologies, etc., provide the government with very powerful intelligence and surveillance tools, and, not just in the coming months, but in the coming years and decades, we are going to see efforts to try to strike new balances between security and privacy in order to adjust to some of these new technologies. Over time, I do think we will see some legislative reform in this area, and we may see courts intervening as well. But it’s going to be a while before law in this area is in any way settled.

Is there a component of this debate that you think deserves more attention?

Assessing the efficacy of these programs is often very difficult because they rarely operate in isolation. These surveillance programs are one among a number of different intelligence instruments, counterterrorism tools, and policies that the government employs. So it is very difficult to try to assess the effectiveness of any one particular program. That’s often overlooked by people on both sides of this debate. Opponents of these kinds of programs don’t always take adequate account of how important they may be when used in combination with other counterterrorism tools. Meanwhile, proponents of these programs sometimes exaggerate the degree to which any one program can be deemed responsible or critical to having thwarted a plot.