David G. Savage, The Los Angeles Times
Special to In Homeland Security
WASHINGTON — When the Foreign Intelligence Surveillance Court began in 1978, it was seen as a smart compromise aimed at protecting both national security and civil liberties.
Before, the FBI under Director J. Edgar Hoover or the U.S. attorney general could use secret wiretaps to compile damaging dossiers on perceived enemies, including politicians and activists. Under the new law, the FBI or the CIA had to go before a judge of the special court if it wanted to wiretap an “agent of a foreign power” in this country, such as a Soviet spy.
These days, the Foreign Intelligence Surveillance Court is more often seen as a good idea gone sour.
As the U.S. government has shifted away from tracking spies or known terrorists to detecting potential plots linked to terrorism, the judges on the court have been called upon to make momentous decisions, such as approving the mass collection of records and data.
Critics say the judicial process has gone awry. The judges, who once served as a check on the government, now serve as a secret and secure rubber stamp for wide-ranging surveillance policies, they say.
“This court has evolved to serve a very different role than when it began,” said Jennifer Granick, a lawyer at the Stanford Center for Internet and Society. “It is now making secret interpretations of the law, and no judge, and no court, should play that role.”
She was referring to leaks last month that revealed how the government’s surveillance has expanded in the last decade. One document released by intelligence analyst Edward Snowden showed that a judge on the secret court had approved an order that required a unit of Verizon to turn over all its phone records for a three-month period.
This revelation surprised many, but not those inside the government. Since 2001, Congress has authorized federal agents investigating “international terrorism” to obtain business records that are “relevant to an authorized investigation.”
This read as though it referred to records involving known terrorists or at least suspicious people with links to terrorists.
Instead, the Justice Department under President George W. Bush and now President Obama decided this meant the National Security Agency could collect and store all the dialing records of phone calls made in this country because they might prove relevant to a future terrorism investigation.
The mass collection policy was approved by a judge of the Foreign Intelligence Surveillance Court in a secret hearing with only the government’s lawyers present.
This has prompted calls in Congress and elsewhere for changes in the court. Some cite a need for a better mix of judges than those currently serving, who are almost all Republican appointees. Others want to include an advocate who takes the other side and argues for privacy and civil liberties.
“This process needs an adversary,” retired Judge James Robertson, who served on the special court, told an oversight board hearing this month. “A judge needs to hear both sides of a case.”
By law, the court is made up of 11 U.S. district judges, all of whom are appointed by Chief Justice John G. Roberts Jr. They rarely meet as a group. Instead, a judge comes to Washington and serves for a week at a time at the federal courthouse to review and act on the government’s requests for surveillance.
Last year, the Justice Department submitted 1,789 requests to “conduct electronic surveillance.” One was later withdrawn, and each of the rest was approved by a judge, according to a report sent to Congress.
In addition, the government sought 212 orders for “certain business records.” The special court “did not deny, in whole or in part, any such application” last year, the Justice Department said, but there were “modifications” to 200 of those orders.
Rep. Adam B. Schiff (D-Burbank) and Sen. Richard Blumenthal (D-Conn.) are proposing measures to change how the judges are named and to require the court to issue unclassified versions of its opinions.
“I think these judges take their jobs very seriously, but we need a more effective set of checks and balances,” Schiff said. “Right now, 10 of 11 were appointed by Republican presidents.”
Schiff proposes that the judges be nominated by the president specifically for the court and confirmed by the Senate. “If they came before the Senate, we would get a better understanding of how they view the 4th Amendment” and its protection against unreasonable searches, he said.
Blumenthal has described the court as “broken. It is unaccountable, secretive and one-sided.”
In recent week, lawyers for the Bush and Obama administrations have come to the defense of the special court and its judges. The judges bring a “healthy skepticism” to requests for surveillance, said Steven Bradbury, a top Justice Department lawyer under Bush.
“I want to correct the erroneous claim that the FISA court is a rubber stamp,” Robert Litt, counsel for Obama’s director of national intelligence, said in a speech at the Brookings Institution. He said the judges made sure each request for surveillance “complies with the law.”
But University of Virginia law professor Christopher Sprigman, like Granick, says the problem goes beyond how the judges are appointed or how they handle specific requests for wiretapping. He says the major decisions on the nation’s surveillance policies should not be made behind closed doors in a one-sided proceeding.
The leaked court orders reveal a mass collection policy that “has no limits,” he said. It could include all credit card records or all travel records, he said.
“We need a public debate if we are going to switch to a mass surveillance policy,” Sprigman said. “Congress needs to decide — in public — whether it is worth surveilling everyone. This shouldn’t be decided in a secret court.”