WASHINGTON — To hear James Comey tell it, judges on the secret Foreign Intelligence Surveillance Court routinely put spy agency lawyers through their paces before approving electronic eavesdropping designed to combat terrorist attacks.
People “hear secret court, sometimes they hear rubber stamp,” the long-time Justice Department lawyer and FBI Director nominee said in his recent confirmation hearing. “In my experience, which is long with the FISA court ... it is anything but a rubber stamp.”
Yet to retired federal judge James Robertson, who resigned from the 11-judge court in protest in 2005, the 34-year institution needs a makeover.
The court’s closed-door proceedings rely solely on lawyers for the National Security Agency or the FBI to submit uncontested surveillance requests to a single judge, without the traditional give-and-take of a courtroom where rival lawyers challenge the government’s case.
Robertson said he was “deeply impressed by the careful, scrupulous, even fastidious work” that government lawyers put into warrant requests during three years on the powerful court that carries out the Foreign Intelligence Surveillance Act of 1978. “But anybody who has been a judge will tell you that a judge needs to hear both sides of a case before deciding.”
Judges on the FISA court have quietly approved almost 33,000 of the nearly 34,000 applications for foreign and domestic surveillance warrants submitted since 1979, according to annual Justice Department reports to Congress. The judges denied only 13 applications and required modification of 498 others before granting approval during that period.
Last year alone, judges approved 1,788 of the 1,856 submissions and required modification of 40 requests before approval.
Critics say that looks too much like a blank check for the surveillance agencies, triggering an avalanche of proposals for changes in the wake of NSA leaker Edward Snowden’s disclosure that the electronic eavesdropping agency has been conducting wide surveillance of Americans’ Internet and telephone communications with the repeated approval of the FISA court.
“The FISA court has been well understood by a very small number of people and completely neglected by everyone else,” said Stephen Vladeck, a professor at American University Washington College of Law. “Folks are surprised to learn that a court operates the way the FISA court does.”
Rep. Jim Himes, D-Conn., a member of the House Intelligence Committee, said people are learning the FISA court is “a double-edged sword.” The court provides valuable judicial review of “sensitive warrant requests for wiretaps and that sort of thing,” Himes said. But it also creates “fairly significant law and legal precedent ... behind very heavy doors and therefore not subject to any public scrutiny.”
The chief judge on the FISA court may have stoked demands for change months before the leaks by rebuffing lawmakers’ initial appeals for greater transparency.
Judge Reggie Walton told Sen. Dianne Feinstein, D-Calif., chair of the Senate Intelligence Committee, and three Democratic colleagues in March that “serious obstacles” stood in the way of “better informing” the public about court operations and opinions.
Providing public summaries could skip “the more nuanced or technical point” of a judge’s analysis — besides the “very real problem of separating the classified facts from the legal analysis,” Walton cautioned.
The judicial brushoff prompted Sen. Jeff Merkley, D-Ore., and colleagues to propose bipartisan legislation that would require the court to release written summaries of “significant interpretations of the law” without releasing classified details.
Summaries would reassure taxpayers that the multimillion-dollar court operation was “exercising real oversight” of national security surveillance activities, said Sen. Chuck Schumer, D-N.Y. “If they’ve approved every (request), it’s awfully hard to think that they’re really doing the job that they were empowered to do.”
Legislation submitted by Rep. Sheila Jackson Lee, D-Texas, would require the attorney general to “disclose each decision, order or opinion” of the FISA court “if significant interpretations” were made of the Patriot Act or the Foreign Intelligence Surveillance Act.
Robertson, the judge who resigned in 2005 after learning the Bush administration had bypassed FISA court approval, wants judges to return to a warrant-by-warrant, case-by-case review instead of weighing entire programs such as collection of domestic telephone metadata.
Asking judges to approve vast programs of surveillance turns the FISA court into “an administrative agency that’s not the bailiwick of judges,” Robertson told the White House-appointed Privacy and Civil Liberties Oversight Board.
Legislation advanced by Sen. Patrick Leahy, D-Vermont, chairman of the Senate Judiciary Committee, would effectively end the NSA dragnet for all phone metadata and limit surveillance agencies to data shown to be relevant to a terrorist group or foreign power.
The allegedly one-sided court process is being addressed by Sen. Richard Blumenthal, a Democrat who served as Connecticut state attorney general. The former federal prosecutor has proposed establishing a special advocate within the court to serve as “a defender of constitutional principles to make sure that the other side is heard.”
The onslaught of proposals reflects a turn in the road, said James Bamford, a journalist who has written three books about the NSA.
“This is the first time I’ve seen momentum building to actually rein in the NSA and put some controls on it,” said the author of “The Shadow Factory: The NSA from 9/11 to the Eavesdropping on America.” “The public is concerned and wants something done. I’m keeping my fingers crossed.”
Beyond lawmakers’ proposals to revamp how the court operates lies a little-noticed but potentially explosive proposal to change who appoints the judges.
By law, the chief justice of the United States alone appoints members of the FISA court to single, seven-year terms. The judges are drawn from the ranks of 2,758 U.S. District Court judges who reached their $174,000-a-year posts following security background checks and Senate confirmation.
So far, Chief Justice John Roberts, who was sworn in almost eight years ago, has appointed 14 U.S. District Court judges to fill the part-time slots on the FISA court. Twelve of those 14 judges initially were appointed to their lifetime judgeships by Republican presidents, and 10 of the 11 judges currently serving on the FISA court were named to the bench by GOP presidents.
Legislation proposed by four-term Rep. Steve Cohen, D-Tenn., would limit the chief justice to appointing three FISA judges with the four members of the House and Senate leadership each picking two additional judges.
“These provisions would guarantee some measure of ideological diversity and would prevent one person — the chief justice — from having too much influence over who makes such important decisions affecting all of our lives,” Cohen said.
Chance at reform
Outside experts see little chance that a deeply divided Congress will enact major legislative changes to the surveillance programs. But mounting political pressure on Congress and on the Obama administration may force the FISA court to adopt changes that would have been unthinkable before the furor erupted over Snowden’s leaks.
“There’s a fair chance that some of these reforms might come from the FISA court and from the NSA, where the leadership is sympathetic to the need for greater accountability,” said William Banks, director of the Institute for National Security and Counterterrorism Syracuse University law school.
The moves may include limited publishing of FISA court opinions, creating an adversarial process within the court and even tinkering with the appointment process to give the president or attorney general the power to appoint the FISA judges.
“The devil will be in the details,” Vladeck said. “But there are lots of ways to make changes if that is the goal.”