A Former Foreign Intelligence Surveillance Court Judge: Reform the Court

CONGRESS created the Foreign Intelligence Surveillance Court in 1978 as a check on executive authority. Recent disclosures about vast data-gathering by the government have raised concerns about the legitimacy of the court’s actions. Congress can take a simple step to restore confidence in the court’s impartiality and integrity: authorizing its judges to appoint lawyers to serve the public interest when novel legal issues come before it.

The court is designed to protect individual liberties as the government protects us from foreign dangers. In 1972, the Supreme Court ruled that the Nixon administration had violated the Fourth Amendment by conducting warrantless surveillance on a radical domestic group, the White Panthers, who were suspected of bombing a C.I.A. recruiting office in Ann Arbor, Mich. In 1975 and 1976, the Church Committee, a Senate panel, produced a series of reports about foreign and domestic intelligence operations, including surveillance by the F.B.I. of suspected communists, radicals and other activists — including, notoriously, the Rev. Dr. Martin Luther King Jr.

The Foreign Intelligence Service Act set up the FISA Court in response. To obtain authority to intercept the phone and electronic communications of American citizens and permanent residents, the government must only show probable cause that the target has a connection to a foreign government or entity or a foreign terrorist group. It does not have to show, as with an ordinary search warrant, probable cause that the target is suspected of a crime.

For decades, the court worked under the radar. That changed after 2005, when The New York Times disclosed a National Security Agency program of surveillance of e-mail to and from foreign countries. Though the surveillance was conducted outside of FISA (Congress later specified that FISA court approval was required), the disclosures brought the court to the public’s attention. Criticism of the court (on which I served for six years after 9/11, while the caseload grew enormously) revived recently after revelations that the N.S.A., without court orders specifying individual targets, gathered troves of data from companies like Google and Facebook.

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James Robertson, a retired federal judge who served with me on the FISA court, recently called for greater transparency of the court’s proceedings. He has proposed the naming of an advocate, with high-level security clearance, to argue against the government’s filings. He suggested that the Privacy and Civil Liberties Oversight Board, which oversees surveillance activities, could also provide a check. I would go even further.

In an ordinary criminal case, the adversarial process assures legal representation of the defendant. Clearly, in top-secret cases involving potential surveillance targets, a lawyer cannot, in the conventional sense, represent the target.

Congress could, however, authorize the FISA judges to appoint, from time to time, independent lawyers with security clearances to serve “pro bono publico” — for the public’s good — to challenge the government when an application for a FISA order raises new legal issues.

During my six years on the court, there were several occasions when I and other judges faced issues none of us had encountered before. A staff of experienced lawyers assists the court, but their help was not always enough given the complexity of the issues.

The low FISA standard of probable cause — not spinelessness or excessive deference to the government — explains why the court has so often granted the Justice Department’s requests. But rapid advances in technology have outpaced the amendments to FISA, even the most recent ones, in 2008.

Having lawyers challenge novel legal assertions in these secret proceedings would result in better judicial outcomes. Even if the government got its way all or most of the time, the court would have more fully developed its reasons for letting it do so. Of equal importance, the appointed lawyer could appeal a decision in the government’s favor to the Foreign Intelligence Surveillance Court of Review — and then to the Supreme Court. No opportunity for such review exists today, because only the government can appeal a FISA court ruling.