FISA Court Needs Internal Adversary, Transparency, Advocates and Former Judge Tell PCLOB

Privacy advocates and former government officials should suggest concrete and implementable changes that could take place at the court to protect Americans’ privacy as the National Security Agency collects data for national security purposes, said PCLOB member and Center for Democracy and Technology Vice President-Public Policy James Dempsey. “I really think it’s incumbent on the civil liberties community … to develop some concrete recommendations for moving forward,” he said. “I think that whether it’s 702 or 215, you really have to get more granular and more specific in terms of concrete suggestions.” Former government officials should also be involved in a critical way, he said. “I really think there’s a role for former government officials to play, and it can’t be [to say] that everything is perfect.” Though former officials often assume the role of government defenders in conversations about surveillance, they have the background to be valuable critics in this debate, he said.

FISC should not be the one-sided forum that it is, said James Robertson, who was on FISC from 2002 to 2005. Robertson said he came away from his time at FISC “deeply impressed by the careful, scrupulous, even fastidious work” of the court, but it’s “not a good thing” that FISC only hears why the government wants to conduct surveillance but hears no argument against the surveillance. “A judge needs to hear both sides of the case,” he continued. “Judging is choosing between adversaries,” and there are no adversaries at FISC. “There is some precedent for” systems that provide internal adversaries, he said, pointing to a group of Defense Department attorneys that defends Guantanamo detainees. Groups like Amnesty International or the ACLU “could have some kind of role as a kind of institutional adversary to challenge and take the other side of anything that is presented to the FISA court,” Robertson said. PCLOB itself could assume that role, “but you're not going to ask for that,” he said to the board members.

Civil liberties advocates echoed Robertson’s call for an amicus role in FISC. “In the usual case before the FISA court, it would be good to have somebody with access to the classified information who could play an adversarial role,” said Jameel Jaffer, director of the ACLU’s Center for Democracy. In some instances -- including the court’s decision to allow the NSA to collect electronic communications data through a “massive dragnet” -- “anyone who wanted to file an amicus brief” should be allowed to, he said. “I'm not convinced that that kind of question has to be decided behind closed doors."

An amicus role at FISC might not be feasible due to the sensitive nature of the facts before the court, former officials told PCLOB. “The amicus would have to know the classified details of the surveillance request,” said Steven Bradbury, former acting assistant attorney general of the DOJ’s Office of Legal Counsel. Finding someone who can have access to those details goes beyond finding someone with the right security clearance -- as had been suggested by PCLOB member Patricia Wald, former chief justice for the U.S. Court of Appeals for the D.C. Circuit -- he said. Facts in front of FISC are “based on the most sensitive national security information,” he said. The facts are “so sensitive that you would need to have an amicus that’s really a permanent” fixture at the court, he continued.

There needs to be more transparency and public input in the FISC process, civil liberties advocates told PCLOB. “Secrecy increases the danger that government will overreach,” said Kate Martin, director of the Center for National Security Studies. The debate over NSA surveillance is “incomplete” because the public only gets its information “through unauthorized leaks,” she said. Constitution Project Senior Counsel Sharon Bradford Franklin said the public is in the dark about how surveillance laws are interpreted and applied. “The actual understanding of what the law means should be public,” she said. CDT Senior Counsel Greg Nojeim suggested to PCLOB that FISC publish its opinions. The court could have “an ombudsperson who tries to take the public’s interest into account in having an adequate summary,” he said.

Any requirements to publish opinions should let the court publish its own opinions, rather than involving a third party that may misinterpret or misrepresent the court’s decisions, said James Baker, who served as counsel to the DOJ Office of Intelligence and Policy Review. Additionally, those requirements should not apply retroactively, he said. “The intertwining of classified facts with legal analysis” in FISC opinions as they are currently being written “makes it difficult to extract the two pieces in a way that will give the American public any information,” he said. If FISC is required to write a version of its opinions that it knew would become public, “the court can say what it wants to say, knowing it will become public,” he said. “Going forward, I think, will be easier than going back."

The three branches of the federal government are already involved in overseeing foreign surveillance programs, Baker said. “How much more oversight, really, do you want?” he asked PCLOB. “FISA was created as a compromise between the branches to enable” surveillance for national security purposes “but to involve Article III courts … and Congress in oversight,” Bradbury said. Prior to FISA’s enactment in 1978, the executive branch conducted surveillance unilaterally, he said. “FISA was a big compromise” to create oversight.

Under the FISA Amendments Act, FISC approves programmatic surveillance, as opposed to approving individual surveillance requests, as it had done prior to FAA’s enactment in 2008, Robertson said. Approving programmatic surveillance requests is not a judicial function, and the FAA “turned the FISA court into something like an administrative agency,” he continued.

Systems made possible by the FAA are “exactly what Congress and the American people asked for” when Congress passed the FAA, said former Assistant Attorney General for National Security Kenneth Wainstein. “The FAA was a carefully calibrated piece of legislation” that was “carefully considered and passed” by Congress, he said. It’s “fairly common” that members of Congress voice objections to a law they passed if the law has led to consequences they might not have anticipated, he said. “That’s not unique to this situation.” Legislation -- including FAA -- “adapts to the situation and adapts to the needs of the time,” he continued. While that is often the case, “the brouhaha after the [Edward] Snowden leaks” indicate that the American public was unaware this type of surveillance is happening, Robertson said. “We need to have a more wide-open debate about this in our society … Thankfully, we're beginning to have that debate, and this meeting is a part of it.”