Secret Surveillance Court’s Weak Check on Intelligence Community

July 11, 2013

by Jeremy Leaming

The secret court that hears government requests for spying on Americans' communications is a durable check against government overreach because it’s made up of esteemed, independent federal court judges and the lawyers representing the nation’s intelligence apparatus are really good at their jobs. At least that’s the take of a large number of government officials who support  sweeping surveillance programs, which the secret has approved.

Last year the Foreign Intelligence Surveillance Court (FISA Court) did not deny or reject the 1,789 government FISA applications. Apparently 40 of applications were modified, but since the FISA Court’s actions are secret, we don’t know in what why they were altered. In 2010, Salon reported, “there were 1,511 applications, of which five were withdrawn and 14 modified.”

This week James Comey, President Obama’s nominee to head the FBI, told a Senate committee that the FISA Court is no “rubber stamp” and that people just don’t understand the highly secretive court, George Zornick reported for The Nation. Comey also maintained that another reason the FISA Court rarely rejects government demands for more information about Americans is that the government’s attorneys work really hard to put together sound applications.

But just as this defense of the FISA Court as a serious check is being built, more information is seeping out about the secret court’s work. The New York Times reported that the Court does more than secretly grant general warrants for the NSA to sweep up mass amounts of information about Americans. It is also issuing opinions on “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.”

Ten of the FISA Court’s 11 independent federal judges, Salon’s Joan Walsh reports are appointed by U.S. Supreme Court Chief Justice John Roberts. The judges Roberts appointed are ones named to the bench by Republican presidents. “Over the last 12 years, they approved 20,909 surveillance and property search warrants and rejected only 10 government requests,” she added.

President Obama and many senators have defended the intelligence community ever since Edward Snowden disclosed a FISA Court order and information about two NSA programs used to collect phone data and monitor Internet activity of Americans from coast to coast. Other lawmakers have said they’ve been briefed on the programs and they do not run afoul of the Patriot Act, which supposedly permits this type of surveillance. Before The Guardian reported on Snowden’s disclosures, Director of the National Intelligence James Clapper told senators that the NSA was not collecting any Internet data on Americans. Sens. Ron Wyden (R-Ore.) and Mark Udall (D-Colo.) are exceptions to the federal officials who have come to the defense of the intelligence community and FISA Court. Both have questioned the effectiveness of the surveillance programs and called for more transparency of FISA Court opinions.

In an interview with ACSblog, Georgetown University law school professor David Cole called the surveillance programs stunning in scope and also said we should know more about the FISA Court. Though he said the Court was a check of sorts, it is still far too secret. For instance, we ought to know more about some of the Court’s interpretations, he said.

The ACLU has challenged the constitutionality of the program that sweeps up phone information of millions of Americans. ACLU Deputy Legal Director Jameel Jaffer said the NSA program that collects phone information, justified as a need to protect national security, is hardly an innocuous trade-off. The group’s lawsuit argues the program violates the Fourth Amendment’s bar against unreasonable government searches.