Many of America’s controversial surveillance activities are “legal” because they are approved by a secret court. Critics, including its own judges, have called for reform – but the problem won’t be fixed until the court adopts some basic legal traditions…
…There is a lot at stake because the court is charged with issuing warrants that give spy agencies permission to listen to Americans’ phone and email conversations if the agencies think there’s a chance that the American in question is communicating with a terror suspect outside the country.
The problem, however, is that the spy agencies are not asking for individual warrants, but large batches of them at once. And the FISA court has been rubber-stamping nearly all of these requests — without leaving any public record of when or why it is doing so…
…This week, a former FISA Court judge published an op-ed titled “A Better Secret Court” in which he argued that the government should appoint lawyers with security clearance to argue the side of the people the government wants to spy on (the people themselves can’t be made aware of the proceedings since that might compromise the investigations).
Such reforms could better protect civil liberties but they don’t address what’s most wrong the FISA court.
Even non-lawyers are familiar with two basic elements of how courts work in a democracy: the court publishes its decision and the loser has a way to appeal it. The FISA court, however, doesn’t really provide either of these basic planks of justice.
Only a handful of the FISA court’s many rulings over the past few decades have seen the light of day, since it is the court itself that decides whether to release them. And the appeals process is a bit of a mystery — even to lawyers familiar with the court…
…It would not take much to fix the situation. Congress can write rules to require the court’s decisions to be declassified on a regular basis. It can also change the original law that created the court to confirm that it is not an island unto itself, but part of the rest of America’s judiciary and subject to oversight by the Supreme Court.
A coalition of liberal Democrats and libertarian Republicans have already formed an influential alliance to challenge the country’s surveillance practices. It would be easy for them to shift their attention to the FISA Court and support people like Rep. Steven Cohen (D-Tenn) who are already trying to reform it.
Finally, in the short term, the FISA Court can take the situation into its own hands and start publishing its decisions — especially the ones that explain the powers of the government and the court’s own role in overseeing it. This transparency is essential to ensure that America, as it expands its security operations, doesn’t abandon the basic legal protections that are the base of every free society.
The closeness of the single occasion when Congress has voted on the question is encouraging. Cripes, it’s encouraging when Congress – particularly the Republican-controlled House – figures out how to do anything.
I wasn’t aware of the FISA court having the power to reform itself. I think the Obama White House can continue to count on childlike obedience from that quarter.
Meanwhile, we need to keep up the pressure.