9 July 2013 — Washington’s Blog
A Real Court Needs to Hear Both Sides
We’ve noted that there is no real oversight by the courts or Congress on the NSA’s spying programs.
The New York Times reports that the court overseeing the government’s spying programs only hearsof the case:
Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.
This is not what real courts do.
As the Times reports:
Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. “That whole notion is missing in this process,” he said.
A retired Federal judge – now a professor at Harvard Law School – has slammed the FISA court:
As a former [federal] judge, I can tell you that your faith in the FISA Court is dramatically misplaced.
Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said.
It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.
I’m very troubled by that [secret court, especially given that national security protections exist within the civilian court system]. When you get cases in court, in regular civilian court that have national security issues that have classified information,we developed a process whereby the parties would develop security clearances and it could be presented to the court without it being disclosed to anyone else. It is not entirely clear to me why a civilian court with those protections that is otherwise transparent couldn’t do the job. That’s the way we did it before. Then we moved to this national security court. The notion that we have to have a conversation about major incursions on civil liberties and that we have step back and say we don’t really know, we haven’t seen the standards, we haven’t seen the opinions is extraordinary troubling in a democracy.
[Indeed, it is well-documented that our traditional federal courts can meet the challenges posed by highly-sensitive and classified national security issues.]
“I would not go so far as to say that the FISA court is acting unconstitutionally, but the absence of any review by the Supreme Court, combined with the secrecy and non-adversary process, pushes it into a constitutional gray area,” Evan Lee, a professor at UC Hastings College of the Law [an expert on federal courts], told TechNewsWorld.
The court’s issuing of rulings in secret “does not in and of itself violate the Constitution,” remarked Sharon Bradford Franklin, senior counsel for The Constitution Project. “However, the practice of having secret interpretations of the law — especially if these interpretations are as extensive as reported — undermines the principles of checks and balances upon which our constitutional government is founded.”
Although the court’s opinions can be appealed to the Foreign Intelligence Surveillance Court of Review — and technically, to the Supreme Court — “in general, it is unclear who would ever have the knowledge of the opinions and the legal standing to appeal,” Franklin said. “Thus, there are not adequate checks and balances.”
And a 3-year FISA judge himself said today that the court doesn’t work:
A former federal judge who served on a secret court overseeing the National Security Agency’s secret surveillance programs said Tuesday that the panel is independent but its oversight is flawed because of the lack of legal adversaries inside the system able to confront the government’s actions.
“Anyone who has been a judge will tell you a judge needs to hear both sides of a case,” said James Robertson, a former federal district judge based in Washington who served on the secret Foreign Intelligence Surveillance Court for 3 years between 2002 and 2005.
Robertson questioned whether the secret FISA court should provide legal approval for the surveillance programs, saying the court “has turned into something like an administrative agency.”
Robertson … warned that Congress’ 2008 reform of the FISA system expanded the government’s authority by forcing the court to approve entire surveillance systems, not just surveillance warrants, as it previously handled. Robertson said the system needed the presence of a legal adversary to act as a check on the government’s programs.
“This process needs an adversary,” Robertson said…
We asked Hofstra constitutional law professor Eric Freedman for his opinion on the FISA court, and he told us:
The only news here is that this monstrosity is finally getting the public attention it deserves.