Democratic Senators Announce FISA Court Reform Bills
A group of Democratic senators unveiled two bills Thursday that would change the operations of the Foreign Intelligence Surveillance Court (FISC), which has oversight over surveillance programs operated under the Foreign Intelligence Surveillance Act (FISA). The FISA Court Reform Act and the FISA Judge Selection Reform Act -- introduced by Sens. Richard Blumenthal of Connecticut, Ron Wyden of Oregon and Tom Udall of New Mexico -- would create an adversarial role within FISC proceedings and expand the number and geographic diversity of FISC judges. The bills introduce “simple and straightforward” changes to FISC, which has a “vast invisible power,” Blumenthal said during a press conference Thursday. The court’s secrecy is “contrary to the principles of accountability and transparency that underlie democratic institutions,” he said.
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Introducing a “special advocate” to the FISC process through the FISA Court Reform Act would allow FISC judges to hear arguments against government requests to expand surveillance when the court is considering “an issue of significant law,” Blumenthal said. The bill would create an Office of the Special Advocate. The advocate would have a five-year term after being nominated by the Privacy and Civil Liberties Oversight Board, appointed by the presiding judge of the FISA Court of Review. FISC judges would be able to involve the advocate, and the advocate would be able to ask the court to reconsider any decisions. “Sadly, the Constitution, more than ever before, needs a zealous and vigorous advocate before the FISA Court,” Blumenthal said. The role of an adversary is necessary, as FISC has reinterpreted the standard of relevance and “allowed it to morph into the collection of millions and millions of phone records,” Wyden said. “There was nobody there to offer the other side” of the story. Currently, the court only hears the arguments for surveillance, and having a special advocate to offer other perspectives will “unstack the deck,” he said.
FISC would have 13 judges -- one from each of the twelve regional appeals courts and one from the Federal Circuit -- under the FISA Judge Selection Reform Act. “Americans would be absolutely astonished” if they knew that the chief justice of the U.S. “appoints all of those judges, [who] then in secret decide these fundamental core constitutional issues,” Blumenthal said. Under the bill, FISC judges would be district judges, nominated by the chief judge of the respective appeals courts and confirmed by the chief justice of the U.S.
The bills “should appeal on a bipartisan basis,” Blumenthal said. There is “very strong support” for the principles that underlie the two pieces of legislation, including for the role of a constitutional advocate, he said. “The intelligence community is very vehement that [FISC] always pushes back, but we don’t have any insider evidence” to prove that the court fulfills that adversarial role, he said. Officials from the agencies conducting these surveillance programs are “extremely receptive” to the introduction of an adversary in the FISC process, he said.
The changes outlined in the bills “will be incredibly helpful” to the FISC process, Electronic Frontier Foundation Staff Attorney Mark Rumold told us. The new FISC judge selection process will lead to more diversity, including geographic diversity, which “is an undervalued diversity,” he said. The details of the special advocate role -- such as how much independence the advocate has and how many resources the advocate is given -- “will be what makes or breaks the efficacy” of the proposal, he said. The role “should be akin to a public defender,” he said. Rumold said he anticipated FISC judges being eager to call on the advocate to hear arguments against the government’s requests. While the person will not be needed “to review bread and butter cases … it’s a different scenario when the FISC is put in the position of having to evaluate new technologies” or new interpretations of law, he said; in those cases, “I think they will be happy to call on the special advocate.”