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06.03.14 Chicago Council of Lawyers Recommendations as to the FISA Court

Chicago Council of Lawyers Recommendations as to the FISA Court

David Melton and Gordon Waldron

I. Introduction

On May 19, 2014, the Chicago Council of Lawyers adopted three recommendations as to the secret court established by the Foreign Intelligence Surveillance Act (FISA).

II. Background

The Foreign Intelligence Surveillance Court (the FISA Court) was established in 1978. It consists of eleven federal district court judges who are designated by the Chief Justice of the Supreme Court It hears applications for surveillance for foreign intelligence purposes. It operates in secret and hears arguments only from the government. In May 2006, it authorized NSA to gather telephone metadata records of every American in a secret order. On August 29, 2013, it issued an opinion presenting a legal rationale for allowing NSA to gather bulk telephone metadata. That was three months after The Guardian revealed the ongoing bulk metadata program, and about 7 years after the 2006 order. III. Recommendations as to the FISA Court

A. The FISA Court should Write Opinions in Significant cases and Publish them subject to limited Redactions

The FISA court should write opinions in cases that raise novel legal questions, or where the government seeks to gather information about the communications of multiple individuals who have no apparent connection to terrorism. Putting informal opinions into writing forces authors (including judges) to confront weaknesses in their opinions and perhaps limit, refine or even change them. Written published opinions will serve to increase public trust in the Court because it will not develop a secret body of law.

The opinions of the FISA court should be made public after a limited period - perhaps between 1 and 6 months - although the Court should be allowed to redact from them information that would identify the suspect, and other particularly sensitive information.

The court that hears appeals from FISA court should also be required to promptly publish its opinions, subject to appropriate redactions.

B. Special Advocates should be Assigned to the FISA Court to Argue on the side of Privacy in Cases that Raise Significant issues and also where the Government seeks Metadata on Multiple Individuals with No Apparent Connection to Terrorism

In cases that raise novel legal questions, or seek to gather information about the communications of many people who have no apparent connection to terrorism, a panel of qualified private attorneys (Special Advocates) should be created who would advocate for civil liberties and civil rights concerns. Although courts regularly issue individual search warrants when the government is the only party, the FISA court’s orders directing the production of bulk telephonic metadata as to millions of Americans' telephone calls are different in kind and raise unique issues.

The Special Advocates should be chosen and appointed by the federal Privacy and Civil Liberties Oversight Board (“PCLOB”) pursuant to eligibility requirements set by statute or regulation.

One or more of the Advocate must be provided in advance with copies of all of the government’s requests to the FISA Court for warrants and other orders, so (s)he can determine which cases are novel or impact many people. The Advocates should also have power to decide in which of those cases to present arguments. They should have this power because American courts traditionally rely on the adversary process to arrive at correct legal conclusions. Moreover, because the FISA Court operates in secret and regularly hears from just the government, it may not recognize when it needs to hear from a Special Advocate.

Finally, the Special Advocates must have the right to appeal from FISA court decisions, in cases in which they have presented argument, to the Foreign Intelligence Court of Review.

D. The Power to Appoint the Judges to the FISA Court Should be Divided among the Supreme Court Justices

Ten of the Court’s current 11 judges (all assigned by Chief Justice Roberts) were appointed to the bench by Republican presidents. Six once worked for the federal government. Such a group may be more likely to respond favorably to a government request for an order of surveillance than would a more diverse group of judges. To provide for greater diversity, the power to appoint FISA Court judges should be divided among the 9 Supreme Court Justices.

Note:

On May 22, 2014, the House of Representatives passed and sent to the Senate the USA Freedom Act (HR 3361). Section 401 provides that the FISA court “shall appoint an individual to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, 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.”

Section 401 thus gives the court complete discretion to decide when amicus arguments will be made.

Section 402 of HR 3361 provides that the Director of National Intelligence in consultation with the Attorney General “shall conduct a declassification review of each decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or . . . Court of Review . . . that includes a significant construction or interpretation of any provision of the [Foreign Intelligence Surveillance] Act, including a construction or interpretation of the term ‘specific selection term’, and, consistent with that review, make publicly available to the greatest extent practicable each such decision, order, or opinion” (including by redaction). However, the Director of National Intelligence, in consultation with the Attorney General, may decide not to declassify a document in order to “protect the national security of the United States or properly classified intelligence sources or methods, ” in which case the Attorney General shall prepare an unclassified statement summarizing the significant construction or interpretation of the Act.

Section 402 thus gives the Director of National Intelligence broad discretion to decide which documents to declassify. Moreover, it is limited to documents interpreting FISA, not other Acts or the Constitution.