AFJ report examines troubling questions about FISA Court

Court "is unlike anything else in our democratic system of checks and balances…”

          Giving the Chief Justice of the United States sole power to appoint all of the judges on an enormously powerful court that issues secret decisions “is unlike anything else in our democratic system of checks and balances…” according to a new report from Alliance for Justice.

The FISA Court was created in response
 to abuses by the Nixon Administration

         The report, Justice in the Surveillance State, takes a close look at some of the troubling issues surrounding the Foreign Intelligence Surveillance Court (FISC).  The court also is known as the FISA Court, after the law that created it. It is the subject of renewed scrutiny in the wake of revelations by Edward Snowden, a contractor formerly working for the National Security Agency (NSA). Snowden leaked a FISC order that permitted the NSA to collect millions, if not billions of data points on American citizens.

  This order – like all orders from this court – was secret.  And though the court was created originally to approve surveillance over individuals, its role has vastly expanded – indeed, it appears to be creating an entire body of Fourth Amendment law in secret.

          While pointing out the broad range of troubling issues raised by the FISC, the report focuses on issues with the composition and operation of the court that make it unique among federal courts.

          As the report notes:

A secret court comprised of judges picked by one individual is problematic enough when that court rules on individual surveillance applications.  But for such a court to be developing an entire body of law, impacting millions of Americans outside of its statutory jurisdiction is even more disconcerting.

AFJ’s extensively-documented report provides a history of the court, from its creation in response to abuses by the Nixon Administration to the present, a survey of current issues and concerns and a review of proposed solutions.

         The report zeros in on two key problems:

        ● In an unprecedented concentration of power, the judges of the FISC are appointed solely by the Chief Justice of the United States – with no advice or consent from Congress.  Judges are chosen from among those currently serving on the federal bench.  Chief Justice John Roberts has used this power to name almost exclusively judges initially appointed by Republican presidents, many of whom have a history of working as prosecutors or for the executive branch.

        ● There is no true adversarial process.  The judges hear only the government’s side of the story.  This may help explain why, between 2002 and 2012, the court approved more than 99.93 percent of government requests.  (Before 2002, it approved 100 percent).

  The report concludes:

These are but a few of the issues that deserve a full, open, and honest debate surrounding our growing surveillance state. Issues of transparency and oversight, international relations, and the role of private contractors in our military-industrial complex are all of vital importance. However, the focus of this report – reforming the way in which judges are appointed to the FISC and ensuring that procedural safeguards are in place – are matters that deserve attention and exploration by Congress, the President and his administration, and the [Privacy and Civil Liberties Oversight Board]. Alliance for Justice intends to remain engaged on these issues and intends to play a role in meaningful discussions going forward with all interested parties.

Read the full report