Have FISA Courts Become A 'Parallel Supreme Court'?

By Walter Russell Mead

The American surveillance apparatus has come under more scrutiny than ever before in the wake of the Edward Snowden revelations. On Saturday, the New York Times expanded on this theme with a new piece arguing that the FISA courts, which review the constitutionality of the government’s data collection programs, have effectively become a ”parallel Supreme Court” with little oversight from the public or the rest of the legal system. The Times highlights one particularly egregious decision:

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.” [...]

Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

This is not exactly an unbiased take, as the experts quoted all seem to agree with the New York Times editorial board. Over at Outside the Beltway, James Joyner offers a more favorable view of the FISA courts, noting that the practice of creating a parallel court system to handle specialized cases is far from unusual, and that many of the constitutional decisions criticized by the NYT aren’t particularly surprising:

[T]he notion that the FISA judges are issuing broad rulings, establishing precedent for types of operations rather than reviewing individual petitions, is hardly unusual. It is both a court of original jurisdiction and an appellate court. It stands to reason that it would over time establish a sort of common law to guide the decision-makers in the intelligence community as to what sorts of surveillance it can and cannot conduct.

Finally, it’s worth noting that the FISA Court is subordinate to the US Supreme Court. To be sure, given its secretive nature, this is more theoretical than practical. It’s not obvious to me as a non-lawyer and non-insider who exactly has the standing to appeal its decisions. But, presumably, members of the Congressional intelligence oversight committees—the only outsiders with knowledge of the court’s rulings—who strongly object to decisions they consider overly broad or in violation of the Constitution could in fact petition for certiorari.

Both arguments have merit, but regardless of who is right, there does seem to be a need for some kind of judicial review here. A secret, non-adversarial parallel legal system that repeatedly disposes of constitutional questions does not look to us like an adequate system to protect Americans’ rights.

The security issues are real, and in general we support the kinds of broad metadata work under consideration. But we don’t trust any set of officials to handle this indefinitely without adequate judicial oversight and review, and indeed it would be hostile to the fundamental principles of our political system to do so. The American constitutional system is based on the idea that you trust your mother, but you still cut the cards. An adversarial justice system, like the division of powers, is intended to ensure that every element of the government is subject to checks and controls.

Congress needs to revisit this subject, and we would like to see a greater role for the Supreme Court in reviewing this emerging field of important constitutional law.

Sadly, the combination of rapidly changing communications technology and an evolving security threat means that these security questions will be with us for some time. It is therefore all the more important to ensure that the legal foundations of these programs be securely grounded in constitutional principles and that the operation of this system be appropriately overseen.

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