Reflections on the FISA Court

It is, of course, difficult to assess the performance of the FISA court, because its activities are secret. But with 30 years of experience, it is possible to offer some reflections and suggestions.
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People visit the U.S. Capitol in Washington, on Wednesday, Dec. 19, 2012, as negotiations on the fiscal cliff. (AP Photo/Jacquelyn Martin)
People visit the U.S. Capitol in Washington, on Wednesday, Dec. 19, 2012, as negotiations on the fiscal cliff. (AP Photo/Jacquelyn Martin)

Before 1978, the federal government assumed that agencies like the NSA and the FBI could legally carry out wiretaps and other forms of electronic surveillance against suspected foreign intelligence agents inside the United States without any prior judicial approval. The assumption was that the invocation of "national security" was sufficient to override the Fourth Amendment's ordinarily strong presumption that any such surveillance must be authorized in advance by a judicial warrant finding that the proposed surveillance is legal.

In 1978, as a result of disclosures about Nixon-era abuses uncovered by the Church Committee, Congress enacted the Foreign Intelligence Surveillance Act which, among other things, created the Foreign Intelligence Surveillance court. Although Congress recognized that government investigations of foreign agents for national security purposes often necessitated a heightened degree of secrecy, it also recognized that prior judicial approval of such surveillance was an essential safeguard against abuse whenever the surveillance might affect an American citizen.

The compromise was to create a court that would have to approve foreign intelligence surveillance activities, but could do so in a manner that would protect the need for secrecy. In short, the creation of the FISA court was a major reform designed to provide for much-needed independent judicial oversight of foreign intelligence investigations. The FISA Act of 1978 was thus seen as a critical step forward in the effort to preserve our civil liberties.

The FISA court today consists of 11 federal district court judges, appointed by the Chief Justice of the United States. Each member of the court has to be approved for a security clearance and each serves a seven year term. Over the past 10 years, the FISA court has reviewed an average of approximately 2,000 requests annually for FISA warrants. The decisions and opinions of the judges on the FISA court ordinarily are classified and therefore unavailable to the general public. The rationale for the secrecy is that public disclosure of the surveillance activities of the government in these national security investigations would effectively undermine both ongoing and future investigations.

It is, of course, difficult to assess the performance of the FISA court, because its activities are secret. But with 30 years of experience, it is possible to offer some reflections and suggestions.

First, critics often point out that the FISA court approves an extraordinarily high percentage of the government's requests. Approximately 97 percent of the government's requests are approved on initial submission, and if one includes those cases in which the government comes back to the court with additional material after a request has initially been denied, roughly 99 percent of all requests are approved. Critics therefore maintain that the judges on the FISA court are simply "rubber stamping" the government's requests, rendering the whole process a sham.

This is too harsh. The 11 judges currently on the FISA court are all well-respected judges. There is no reason to believe they do not take their responsibilities seriously. A more likely explanation of the extraordinarily high rate of approval is that officials in the Department of Justice take equally seriously their responsibility to put forth requests for approval only when they are confident that the requests are justified.

Indeed, in a situation in which the lawyers for the Executive Branch know full well that they need the FISA court judges to have complete confidence in the credibility of their submissions, it makes sense that they would be extremely careful not to put forth weak proposals that would shake the confidence of the court. It is therefore perfectly possible that the system, at least in this respect, works precisely as intended.

It is important to note, though, that without the existence of a FISA court to which Executive Branch officials are answerable, there is little doubt that the NSA and the FBI would be authorizing all sorts of investigations that would not meet the standards now imposed by the FISA court. In that sense, the existence of the FISA court plays a critical role.

Second, there are major deficiencies in the way the FISA court now operates. When the judges on the FISA court review the government's submissions, there is no one on the other side to advocate against the arguments of the government. In this respect, the FISA process was modeled on the usual search warrant process, in which a police officer provides information to a judge in the hope that the judge will issue a search warrant. But in the usual search warrant situation, there is often an opportunity for subsequent adversarial litigation over the legality of the search. This might happen in a civil action brought by the target of the search or in a defendant's motion to suppress the evidence in a subsequent criminal prosecution. In practical effect, there is no opportunity for adversarial review in the FISA context.

There is a simple -- and necessary -- solution. Whenever the government seeks a warrant from the FISA court, an independent government lawyer, with a security clearance, should have the responsibility of arguing the other side. In a sense, this would be something like a public defender's office, where the "client" is not only the target of the proposed surveillance (who would know nothing about what is happening), but also the national interest in reaching the best outcome in these matters. Our legal system is premised on the merits of adversarial presentation of arguments, and there is no good reason why the FISA process should not adopt that model.

Third, there is some reason to be concerned about the makeup of the FISA court. Of the 11 judges currently serving on the court, ten were initially appointed to the federal bench by Republican presidents. Only one, Judge Mary McLaughlin, was appointed by a Democratic president- Bill Clinton. The reason for this seems pretty clear, and it is troubling. Under the FISA Act, the Chief Justice appoints the members of the FISA court. Since 1978, when the FISA court was created, every Chief Justice of the United States -- Warren Burger, William Rehnquist and John Roberts - was appointed by a Republican president. At present, approximately 50 percent of federal district court judges were appointed by Republican presidents and 50 percent were appointed by Democratic presidents. But on the FISA court, 91 percent were appointed by Republican presidents and only 9 percent were appointed by Democratic presidents.

This is quite disturbing in terms of the choices made by Burger, Rehnquist and Roberts, who are not supposed to be influenced by partisan or ideological considerations. Moreover, this matters. Judges appointed by Republican and Democratic presidents differ quite significantly in their judicial approaches. To cite just one example, among Supreme Court justices appointed in the last 30 years, those appointed by Republican presidents support civil liberties claims roughly 34 percent of the time, whereas those appointed by Democratic presidents support such claims approximately 74 percent of the time.

One can therefore fully expect that a FISA court consisting of 91 percent Republican-appointed judges, even if they attempt to meet their responsibilities in good faith, is dramatically more likely to approve warrants for government surveillance than a FISA court consisting of judges appointed half by Republican and half by Democratic presidents. The fault here -- and this distortion is clearly a fault -- rests clearly in the inexcusable failure of Chief Justices Burger, Rehnquist and Roberts to pay fair attention to this consideration.

There is, of course, much more to say about the FISA court, but this is food for thought.

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