Congress has given U.S. intelligence services a lot of power to collect information on all sorts of people, Americans included, in the name of national security. It also entrusted a group of judges, the Foreign Intelligence Surveillance Court, with making sure that government agents use their authority fairly. But ever since former National Security Agency contractor Edward Snowden released a copy of a FISC order of surprisingly sweeping scope, lawmakers, commentators and ordinary citizens have questioned whether the secretive court is really ensuring that Americans’ privacy is protected along with their safety.
That one order, requiring the turnover of Americans’ call records, is not enough to justify changing the FISC. When a court of duly appointed judges interprets a law in a controversial, even unpopular, way, the first response should not be to tinker with the conditions under which the officers of the judicial branch do their work. Congress can try to change the law if it wants to change the results of its application.
To warrant reform, some things about the way the court is built must be concerning in themselves. And, in the case of the FISC, some things are. For one thing, the court seems to hear only the government’s side. That’s not the way judges work in most circumstances, and for good reason. Judges can’t be expected to be both neutral arbiters of the law and advocates for the defense, and government agents asking for permission to collect information can’t be expected to present interpretations of the facts alternative to their own. Outside the FISC, judges occasionally have to make decisions on search warrants without an attorney present to defend the target. But, as George Washington University’s Orin Kerr points out, those decisions are subject to public, after-the-fact review and governed by well-known precedent.
The reasonable case for reforming the FISC was first made decades ago. Kenneth C. Bass III, a Carter administration lawyer who helped establish the FISC process, argued before Congress in 1994 that proceedings should be more adversarial. Mr. Bass suggested that the court have an option to ask for outside counsel to represent the interests of those targeted when the judges want to hear from another side. Congress never acted on that modest but worthwhile idea.
Now lawmakers have plenty of ideas to choose from. Mr. Kerr proposes giving the oversight section of the Justice Department’s National Security Division the right to oppose the government before the FISC whenever it wants. Sen. Richard Blumenthal, D-Conn., wants to create a special advocate with similar powers. Congress could finally take Mr. Bass’ advice and figure out a way to tap lawyers outside the government for the job. At the least, there should be an opportunity for opposing views when novel interpretations of the law are up for discussion.
It’s hard to say much for certain about the FISC, because pretty much everything about it is secret. And some ideas aren’t so appealing — such as a few of the plans out there to mix up how the court’s members are chosen. But forcing the government to overcome counterarguments seems very fair to us; it would make sense even if the court is already doing spotless work.
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This editorial appeared in Wednesday’s edition of the Washington Post.