What is the difference between secret law and no law at all? For American citizens contemplating the amorphous powers of the Foreign Intelligence Surveillance Court and the shrouded body of law upon which its secret decisions are based, the distinction borders on trivial. Recent investigative reports suggest that both the court and the law it administers (and helped to create) exist largely outside the boundaries of established jurisprudence.
Because of the release of documents by former National Security Agency consultant Edward Snowden and subsequent reporting by the news media, the dangers of this un-American exceptionalism are becoming known. The 11-member surveillance court operates in rotating shifts; most of the orders authorizing government surveillance have been signed by a single judge—whichever one is on duty at the moment. Each judge was appointed, without review, by a single man, Chief Justice John Roberts. Although a court of review can be empaneled to hear appeals, in effect, a lone judge, appointed by a lone judge, is the only barrier between the government’s demand for intelligence and a citizen’s constitutional right to privacy.
Democratic Senator Jeff Merkley of Oregon and several cosponsors support legislation to require the U.S. Attorney General to declassify some opinions of the surveillance court. Should the Attorney General conclude that declassifying a particular opinion would undermine security, the court could instead issue a summary of its decision. If even that proved too sensitive, the Attorney General would be required to explain why to Congress.
The Merkley bill is a good start. But it’s not sufficient to instill balance. For that, the Foreign Intelligence Surveillance Act (FISA) statute will have to be amended. We recommend that Congress focus on two especially troubling elements.
First is the court’s lack of an adversarial forum. The government presents its case to a judge, and the judge issues a ruling. No one represents the interests of those being monitored. One idea is to establish a unit in the Justice Department to serve as an advocate for privacy. When justified, the office would challenge the legal basis of surveillance requests. It could even challenge the government’s facts. The presentation of an alternative view might arrest the court’s drift toward national security myopia.
Second is the enormous power invested in the Chief Justice. No single person should appoint all members of the surveillance court without oversight. Democratic Representative Steve Cohen of Tennessee has proposed a system in which the Chief Justice would name 3 of the 11 judges, and each of the four congressional leaders would make two appointments each.
One way or another, Congress should reform the court to more convincingly emulate the character of American justice. The U.S. government is an occasionally maddening system of checks and balances, yet the surveillance court stands out as uniquely shielded from both.