Should interpretation of the laws and Constitution of the United States take place in one-sided secretive courts, away from the public eye?

For years, it has. But even Foreign Intelligence Surveillance Court (FISC) judges don’t agree on how exactly the FISC should work. Since the Snowden disclosures, hundreds of lawmakers have made it clear that they want to see more transparency in the court by supporting various NSA reforms. Most recently, 18 Senators co-sponsored the new USA FREEDOM Act, S. 2685, which offers a few important changes to the FISC.

So who’s right? A look at the history and procedures of the FISC make it clear: real reform is needed now.

How We Think Courts Work, and How that Measures Up to the FISA Court

As a society, we imagine courts are places where adversarial proceedings take place. In television, literature, and movies, we see each side taking responsibility for gathering the evidence and witnesses that will be most helpful to their argument­. They put forth their evidence and argue the law where applicable. And each side has the opportunity to know and take apart the other side’s evidence.

Of course some court situations are not adversarial. The most commonly known situation is when a judge signs a warrant so law enforcement can conduct a search after hearing only from the cops. But when those warrants result in evidence that is used in court, there’s still a chance to challenge the validity of the warrant and the search—and if they were done incorrectly, that evidence can often be suppressed.

The FISA Court is very different. Created by Section 103 of the Foreign Intelligence Surveillance Act of 1978, the purpose of the FISC is to “hear applications for and grant orders approving electronic surveillance anywhere within the United States.”

The court makes its own rules and operates in secret. It decides matters like the now infamous Verizon order leaked by Edward Snowden, which allowed for the collection of call detail records for millions of innocent Verizon customers. It relies on a general “heightened duty of candor,” meaning that the government is supposed to go to extreme lengths to tell the court everything it ought to know to make the right decision.   

Now, if this was just a simple process of approving applications for surveillance, and if the evidence could later be challenged in court, this might make sense. But, as we’ve learned, this process is not so simple and can involve critical issues of constitutional law and interpretations of what Congress meant in FISA. The court must rely on one-sided information from the government and has to trust that that information is complete. And the data collected by the NSA and FBI under those applications often remains secret, even when it, or information derived from it, is used in criminal proceedings.  

Why the FISA Court Needs to Change

Among the myriad reasons the FISC must change, three stand out.

First, FISA has become a drastically more complicated law than when it was originally passed in 1978, and the role of the FISC has accordingly grown far beyond the bounds of what Congress envisioned. Second, because of those changes, the FISC has created a huge body of secret policy and legal precedent. Finally, the court’s reliance on the government to provide all the necessary information needed to fairly make decisions is not sufficient, something that is painfully obvious as one reads the FISC decisions themselves. It’s also something EFF has recently experienced in our NSA cases.  

The court’s mandate has expanded exponentially since 1978, especially during the 90s. More recently, Section 215 of the PATRIOT Act and Section 702 of the FISA Amendments Act—both of which were passed decades after the initial FISA—granted far broader spying authorities to the government than had existed before, and the government has claimed the right to conduct mass surveillance under these provisions. What Congress originally authorized when creating the FISC, with the Church Committee hearings freshly in mind, was an expedited system of approving individualized warrants for foreign surveillance of specified individuals—much like what regular magistrate judges do with warrants now, with safeguards built in for the national security context.

That bears repeating: When FISA was passed, it authorized individualized warrants for surveillance. Now, the court is approving mass surveillance.

This is key, because as “current and former officials familiar with the court’s classified decisions” told the New York Times in July of last year, the court is no longer simply approving applications. It is “regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny," affecting millions of innocent people. As former FISC judge James Robertson stated to the Privacy and Civil Liberties Oversight Board, “What [the FISC] does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but the 2008 (FISA) amendment has turned the FISA court into an administrative agency making rules for others to follow.”

The result of this expansion of the FISC’s role is a body of secret law that, now that some has come to light, has shocked most Americans. The most obvious example of this is, of course, section 215 of the Patriot Act, where “the court’s interpretation of the word ['relevant,'] enabled the government . . . to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.”

The “heightened duty of candor” is not enough. FISC decisions that have been made public are full of descriptions of the NSA not fulfilling its duties and being very slow to inform the court about it. Judge John Bates noted: “The court is troubled that the government’s revelations regarding the NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” and noted “repeated inaccurate statements made in the government’s submission,” concluding that the requirements had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall…regime has never functioned effectively.”

Judges have consistently chastised the NSA for “inaccurate” statements, misleading or incomplete filings and for having “circumvented the spirit” of laws protecting Americans’ privacy.

EFF had its own brush with this problem earlier this year, when we discovered that the government had not even informed the FISC of its duties to preserve evidence. In March, after an emergency hearing, a federal court in San Francisco ordered the government to preserve records of Section 215 call details collection. On that same day, the FISC issued its own strongly worded order in which it mandated the government to make a filing explaining exactly why it had failed to notify the FISC about relevant information regarding preservation orders in two related cases, Jewel and Shubert. This failure had affected the court’s earlier ruling mandating that certain information be destroyed.

It’s clear that the FISC simply can’t rely on the government to get the full picture.

How the FISA Court Needs to Change

The FISA Court must change in at least two ways: it needs a true advocate for privacy and civil liberties in the court and it must have institutionalized, systematic publication of significant opinions.

As former FISC Judge James Carr has stated, reform requires an advocate for targets of surveillance, as well as for privacy and civil liberties. A special advocate for privacy would move the court towards the adversarial model. It would end blind reliance on the government’s candor, which has been proven to be less candid than the FISC itself would like. And a special advocate can bring technical expertise that the FISC might otherwise not have and help spot legal issues that might otherwise go unnoticed.

Publication of significant interpretations of the law is also essential; there must be a public understanding of what the law means in practice. For this to work, declassification should not be held captive by the intelligence community, as is currently the case.  At the very least, the Attorney General and the FISC itself should work together to determine what opinions should be published, based on clear guidelines about what significant interpretations of the law actually are.  This is just a small step, though. The FISC secrecy is just one piece of the overall problem of overclassification, which needs broader reform.

How S.2685, the New USA FREEDOM Act, Measures Up to the Needed Changes

As we’ve noted, the bill makes two big changes to the FISC: it directs the Office of the Director of National Intelligence, in consultation with the Attorney General, to declassify “significant” FISA Court opinions and to summarize opinions that can’t be declassified. And it creates a panel of special advocates with the purpose of advocating “as appropriate, in support of legal interpretations that advance individual privacy and civil liberties.” The special advocates are meant to serve whenever an application “in the opinion of the court, presents a novel or significant interpretation of the law, unless the court issues a written finding that such appointment is not appropriate.”

Prof. Steve Vladeck at Just Security has pointed out that a recent letter from Judge John Bates arguing against the new USA FREEDOM Act’s FISA Court reforms serves to reinforce exactly why they are needed, and indicates that they may very well be effective. 

Judge Bates, former presiding judge at the FISC, strongly decried several provisions of the new USA FREEDOM Act in his August 5 letter. The letter itself is a little unusual—Judge Bates states that he’s not expressing “preferences on fundamental policy choices,” but makes it clear that he supports the gutted House USA FREEDOM, H.R. 3361.

Judge Bates’ concerns with regards to the special advocate can be summed up like this: non-adversarial proceedings are not a big deal. They happen all the time, and this process allows for lots of great conversation between the court and the government. A special advocate would complicate this. They are more than just an amicus, advising the court. They are advocating for privacy…..but our system isn’t designed to handle adversarial proceedings. An amicus provision, opines Bates, would be preferable. 

And as Judge Carr has pointed out, “An amicus represents no one. Instead, an amicus participates solely for the court’s benefit. This will not achieve true reform, which requires appointment of an attorney to represent the target (whether the target is an individual, group, or the public at large).”

Judge Bates’ concerns are all aimed at maintaining the court as it is. He argues that a special advocate will upset the court's balance. In our opinion, that’s a good thing. Considering Judge Bates' conclusion in his October 2011 opinion that the system has "never functioned effectively," it is surprising that he doesn't agree.

Judge Bates is concerned about potential reluctance on the part of the government to disclose important information to the court if a special advocate position is created. But the government has the obligation to disclose that information no matter what. And what’s more, we already know that the court as it is doesn’t work.

If anything, the special advocate provisions in S. 2685 could be stronger. The special advocate could, when appropriate, have the specific purpose of representing potential targets of surveillance, instead of advocating generally for interpretations of the law that protect civil liberties. Judge Carr points out that counsel for a target is most important “on appeal. Enabling adversarial appellate review is crucial to increased confidence in the FISC and its work.” The special advocate could also have more independence. But the bottom line is that S. 2685’s special advocate provisions are a huge, necessary step forward.

Judge Bates also has concerns about declassification of FISC opinions. S. 2685 directs the Office of the Director of National Intelligence, in consultation with the Attorney General, to declassify “significant” FISA Court opinions. He writes that creating summaries of opinions that can’t be declassified is “likely to result in misunderstanding of the opinion’s reasoning and result,” a concern he believes is “heightened when the only party to the proceeding—in this context, the government—is tasked with preparing the summary.”

In contrast, Judge Carr believes that the FISC must have a significant role in the declassification process for the FISC’s own opinions.

These objections point to potential weaknesses in S. 2685. We believe that a less interested party should be in charge of declassification—the legislation puts the Director of National Intelligence in charge of that process, which is a bit like the fox guarding the hen house.

Judge Bates’ concerns that S. 2685 will interrupt the status quo at the FISC make a strong case that the legislation is a much-needed step in the right direction.

The status quo is broken. S. 2685 starts to fix it.