There’s no doubt that the secret court overseeing the unconstituional NSA spying must be reformed. The recent revelations of large-scale domestic surveillance approved by the Foreign Intelligence Surveillance Court (FISA Court) are proof of that. The FISA Court operates in near-total secrecy and only hears from one side—the US government. What's more: according to news reports, it's gutted the Fourth Amendment by creating expansive exceptions to the law unseen before in any other court.
There's been a steady stream of calls for reform from the press, former FISA Court judges, and even Congress. Last week President Obama jumped into the mix by announcing support for changing how the court works by introducing an adversary to argue against the government. We couldn't agree more. Any FISA Court reform must make real change to open the court to public scrutiny. This includes making the court more transparent, introducing an adversary to the one-sided courtroom, and having a diverse set of judges.
Minimize the Secrecy
Some secrecy may be needed to protect national security, but it’s clear that there’s far too much of it surrounding the court. That should not be a surprise. In the past, the government has used secrecy as a protection against criticism and rational debate. Any law, statute, regulation, or ruling that is going to be used against the American public must be published for people to read, copy, republish, and study. Some facts might need to be redacted, but we must understand what our laws mean, and why.
Right now all of the FISA Court’s opinions, decisions, and legal rulings are secret (with a few exceptions). This secret law contains dozens of opinions—some of which are hundreds of pages long. These pages are not routine legal opinions, but—as reported by the New York Times and Wall Street Journal—have gutted the Fourth Amendment and other surveillance laws.
Any FISA Court reform bill must mandate declassification of past rulings and processes to publicly release future rulings. Rulings about electronic surveillance—whether by the FISA Court or other courts—should have public, unclassified versions of the legal interpretations with redactions limited to operational information whose publication would pose a real and demonstrated harm to national security. A secret court creating secret law unknown to the public has no place in the United States.
Two Sides of an Argument Must be Heard
When the government asks the FISA Court to spy on every American's calling records, no one is there to argue against the government. President Obama and two former judges of the secret court have called to introduce an adversary to argue against the government.
A bill by Senator Richard Blumenthal tackles this problem head-on. Senator Blumenthal's bill establishes an Office of the Special Advocate which can contest FISA Court orders, appeal orders all the way to the Supreme Court, request declassification of documents, and call for public amicus briefs in certain cases. To ensure the success of the Special Advocate it must be well staffed and provided speedy access to classified material. Senator Blumenthal's bill should move forward as it addresses major flaws of the FISA Court.
Change Selection of FISA Court Judges
Right now, FISA Court judges are hand-selected by the Chief Justice of the Supreme Court from the current pool of federal district court judges. What's resulted, unfortunately, is a court heavily slanted towards former prosecutors and the eastern part of the United States. There's only a single FISA Court judge from the Ninth Circuit, the largest judicial circuit covering 11 states.
Senator Blumenthal also introduced a second bill addressing this problem. Instead of having a secret selection process, each Chief Judge of a federal circuit would publicly nominate a judge from their circuit to serve on the FISA Court. This process will ensure all circuits are represented and introduce more opinions on the court. Such a decentralized process will further the court's deliberation—an important facet for any group discussing fundamental constitutional and national security laws.
The FISA Court Must Change
Increasing the court’s transparency will alleviate some of the core problems of a secret court making secret law. A court's opinions dealing with constitutional and national security law should not be secret. The FISA Court should not operate in complete dark. It must listen to two sides of an argument, release its opinions, and consist of diverse personalities. Reforming the court is one of the many steps to ensuring that secret law can't be used against the very people it's supposed to be protect—innocent Americans.