David Adler: Clarity and transparency needed in surveillance court

July 11, 2013 

David Adler

Credit former United States Foreign Intelligence Surveillance Court Judge James Robertson for stating the obvious: The tribunal is flawed because only the government's side is represented when the government requests a warrant to conduct surveillance. "Anyone who has been a judge will tell you a judge needs to hear both sides of a case," Robertson declared.

The statutory rationale for the one-sided hearings is that the information disclosed to the court is too secret for outside attorneys.

As a result of this process, government attorneys have amassed a nearly perfect record in the 35-year history of the Foreign Intelligence Surveillance Act, rarely suffering a rejection of requests for approval to conduct electronic surveillance of both suspected foreign agents and terrorists in the United States and foreign targets abroad.

Few Americans will doubt the need for surveillance in this dangerous world.

The problem is we don't know what we don't know - particularly when faced with the complex matter of balancing national security needs with civil liberties.

As it stands the program is flawed and requires reform in the way of checks and balances to increase public confidence in the integrity and effectiveness of the judicial panel.

Beyond the problem of the lack of an adversarial party before the court, necessary to challenge the arguments and assertions of Justice Department attorneys, there are at least three problems Congress should address.

First, the FISA court has generated a body of secret Fourth Amendment law that has been unreviewable and unchallenged, a problem that betrays the core principles of American constitutionalism.

The publication of judicial opinions represents a mechanism for holding judges accountable, reining in, as Alexander Hamilton colorfully put it, "the trackless imaginations of their minds."

American colonists, it will be recalled, were particularly skeptical of judicial decisions rendered by English judges, but access to judicial reasoning provided, at a minimum, a foundation to challenge legal conclusions.

Today, the American public may be excused for its skepticism about the record of the FISA court.

Lack of access to its opinions, and the reasoning on which they are based, do not inspire confidence.

As a first step Congress should revise the FISA statute to require FISA courts to publish summaries of their opinions.

A second problem associated with the FISA court has involved the expansion of its role. FISA, passed by Congress in 1978 as a product of the Church Committee hearings, had wisely limited the role of the FISA judges to approving wiretap orders.

But Congress revised the statute in 2008 and expanded the court's jurisdiction to consider requests related to espionage and cyberattacks. The FISA court, as Judge Robertson put it, "has turned into something like an administrative agency." Congress needs to revisit the scope of the court's authority.

Third, Congress must revise the appointment process of FISA judges. The statute confers upon the chief justice of the Supreme Court authority to appoint judges to the FISA court.

Well, the entire court has been appointed by Chief Justice John Roberts. Congress should amend the law and incorporate the familiar "advice and consent" role of the Senate in the appointment of judges.

The FISA court has assumed an unexpectedly large role in the life of America and requires reforms. Idahoans can look to Sen. Jim Risch for leadership - he serves on both the Senate Foreign Relations and Intelligence committees. The "trust me" rationale invoked by governmental officials has never been acceptable to Americans. Since the days of Thomas Paine, we have all been Missourians, and have expected our government to explain its reasoning and actions.

Adler is the director of the Andrus Center for Public Policy at Boise State University, where he holds appointment as the Cecil D. Andrus professor of public affairs. He also serves as adjunct professor of law at the University of Idaho College of Law, where he teaches courses on the Constitution and the Supreme Court. Adler has lectured nationally and internationally on the Constitution, the presidency and the Bill of Rights.

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