FISC Transparency Needed For Surveillance Credibility, Blumenthal Says, Touting His Reform Bills
U.S. government surveillance work “needs and deserves the trust and credibility of the American people,” said Sen. Richard Blumenthal, D-Conn., during a Thursday address at Harvard University’s Law School. The Judiciary Committee member last week introduced two bills to reform the Foreign Intelligence Surveillance Court (FISC) process (CD Aug 2 p5). His FISA Court Reform Act would create an adversarial role in the court process to appeal FISC decisions and, when called upon by the court, argue against the federal government’s requests for expanded surveillance powers. Blumenthal’s FISA Judge Selection Reform Act would raise the number of FISC judges to 13 and create a selection process by which each judge is nominated by the corresponding federal circuit’s chief judge.
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The FISC process excludes important protections present in criminal court proceedings, Blumenthal said. When passing FISA in 1978, Congress borrowed from the processes of the Title III courts, which handle the “garden variety criminal investigation that is done day in and day out,” he said. Unlike a Title III proceeding, “the target of FISA-authorized surveillance probably never learned that he was targeted,” he said. FISC has no adversarial role, he said. “All of the decisions governing the scope of what FISA allows emerge from a process in which the court hears only the government’s interpretation of the law and Constitution."
The government surveillance laws passed this century have increased risks to individual privacy, including the FISA Amendments Act, through which “Congress tasked the FISA courts with authorizing programmatic surveillance,” Blumenthal said. “Under the new regime, the FISA courts … play the role of lawmaker.” Blumenthal pointed to the court’s interpretation of the relevancy standard that led it to authorize the government to collect and create a database of phone metadata. “Like it or not, the FISA courts decide in practice what the term relevance means,” he said.
Americans would be more ready to trust FISC decisions if they knew it was a fair process, Blumenthal said. Under his FISC reform bill, the special advocate “would be testing, challenging, questioning the government’s point of view,” he said. The person -- appointed by the Privacy and Civil Liberties Oversight Board and approved by the presiding FISC judge -- would be “someone of distinction” who has “very high standing in the legal community” and a strong background on privacy issues, he said. Blumenthal compared the special advocate to the public defender. Though public defenders are appointed and employed by the judiciary, “federal public defenders are nothing if not zealous in defending their clients,” he said.
FISC judges don’t represent the geographic and ideological diversity of the country’s judges, Blumenthal said. “All 11 have been appointed by [U.S.] Chief Justice John Roberts,” he said. “Ten out of 11 are Republican,” and “half have backgrounds in executive branch activities.” A more diversified FISC would result in both the reality and perception of surveillance decisions being made by a more representative panel, Blumenthal said. “In this case, perception is especially important because the opinions are all secret.” Americans can’t evaluate what the court does when it’s making surveillance law, so it’s important that citizens trust the judges making those decisions, he said. “Perception is vital to trust and accountability."
Blumenthal voiced his support for other Senate bills that would reform government surveillance abilities. He called a bill by Senate Judiciary Chairman Patrick Leahy, D-Vt. -- which would “narrow the scope of the Patriot Act” to limit collection of data -- “a sensible approach to a difficult issue.” He said he supports bills by Sen. Jeff Merkley, D-Ore., that would require FISC to declassify redacted versions of its opinions, and by Sen. Al Franken, D-Minn., that would allow companies to release aggregate statistics about the surveillance requests they receive. “I've supported and cosponsored both of these measures,” Blumenthal said, to create a situation where “the American people know what law governs their own actions.”