Nearly two full years have passed since the Foreign Intelligence Surveillance Court (FISC) ruled unconstitutional something that the National Security Agency (NSA) was doing was either unconstitutional or illegal or both. Amazingly, in a country that venerates the rule of law, the very existence of this 86-page ruling was unknown until recently. And its exact contents are still unknown, not only to the public but also to members of Congress.
The 11-member court set up in 1978 in the wake of a quarter-century of CIA scandals has been much derided throughout its lifetime as a rubber stamp for the executive branch. But something that the NSA was doing in carrying out the government’s clandestine mass electronic surveillance program proved to be too much for the generally compliant court to approve. And the government is now facing a deadline of next week [Aug. 12] to respond to the effort by the Electronic Frontier Foundation (EFF), a digital rights organization, to unseal at least parts of the secret opinion.
The litigation over the secret opinion constitutes the most damning refutation of the argument from the Obama administration and congressional intelligence committee leaders that robust oversight by Congress and the court itself has kept the mass surveillance programs under control. Two gadfly members of the Senate Intelligence Committee, Democrats Ron Wyden of Oregon and Mark Udall of Colorado, have been raising alarms for a couple of years about privacy-invasive monitoring of U.S. citizens by the NSA. The committee’s rules prevented Wyden and Udall from being more specific.
The bombshell disclosures by the ex-NSA contractor Edward Snowden helped Wyden, Udall, and other surveillance critics finally gain front-page attention. The belated backlash on Capitol Hill forced the administration’s intelligence agencies into high-stakes lobbying to beat back a bipartisan attempt in the House of Representatives to rein in the NSA’s activities.
The amendment by Rep. Justin Amash, R-Mich., would have prohibited the NSA from bulk collection of phone records from U.S. carriers and cut off funding for the program as currently administered. The House rejected the amendment by a fairly narrow margin, 217-205. (Party breakdown: Democrats, 111-83; Republicans: 94-134.)
In the run-up to the vote, lawmakers in both chambers were complaining about the difficulty of getting straight answers and complete details from Obama administration officials about the NSA’s programs. The two Intelligence Committee chairs Sen. Diane Feinstein, D-Calif., and Rep. Mike Rogers, R-Mich. both have insisted from the start of the Snowden controversy that information about the program has been available to any member of Congress on request. But gadfly journalist-blogger Glenn Greenwald disclosed in The Guardian on Sunday [Aug. 4] unsuccessful efforts by two House members Alan Grayson, D-Fla., and Morgan Griffith, R-Va. to get more information: Grayson from the Intelligence Committee, Griffith from the NSA.
Snowden’s disclosure also helped bring to the surface criticism of the FISC’s role by one of its former members: James Robertson, now retired from the federal district court in Washington. Robertson served on the court from 2002 to 2005, but resigned in protest over disclosure of the Bush administration’s warrantless wiretapping program. Now, Robertson says the FISC has been put into an inappropriate position by being asked to rule not on individual applications for surveillance but on mass surveillance requests. Those are policy matters, Robertson says, that are better addressed by the other branches of government.
Robertson spoke to the newly established Privacy and Civil Liberties Oversight Board on July 12, just a few days after an article in The New York Times describing “more than a dozen classified rulings” from the FISC allowing expanded data collection by the NSA [July 7]. Reporter Eric Lichtblau quoted sources outside the court who insisted on anonymity in describing what he called “a secret body of law.” Judges on the court declined to comment, but Robertson said he was “frankly stunned” by the story.
The appointment of FISC judges has itself come under criticism. The law gives the chief justice the power to appoint judges, for fixed seven-year terms. Chief Justice John G. Roberts Jr. who served in the executive branch under two Republican presidents, Ronald Reagan and George H.W. Bush has used that power to stack the court with Republican-appointed judges with executive experience, according to a detailed analysis in The New York Times [July 26].
Various proposals to reshape the FISC are now in circulation, but all present practical problems that will help stand-pat lawmakers slow or defeat them in Congress. One proposal calls for presidential appointment and Senate confirmation of FISC judges. Robertson among others suggests creating some governmental entity that could appear before the FISC in opposition to the government so that the court would have the benefit of the usual adversarial process.
Disclosure of the FISC’s secret 2011 opinion could shed some light on these controversies. The court’s chief judge, Reggie Walton, issued an order on June 7 stating that the court itself would not object to the release of the decision pursuant to the Freedom of Information Act request filed by EFF. The matter is now pending before Judge Amy Berman Jackson in Washington. The government had asked to stay the proceedings until September, but Jackson ruled on July 9 that the government has to release the opinion by Aug. 12 or explain why not.