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Peter Shane Asks: “Can A Secret Court Advance the Rule of Law?”

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Saturday, November 30, 2013 at 9:19 AM

Ohio State law professor Peter Shane writes in with the following thoughts on recent revelations about the FISA Court:

Edward Snowden’s leaks and the ODNI’s subsequent declassification program have shed unprecedented light on the Foreign Intelligence Surveillance Court (FISC).  Anyone delving into the newly public FISC opinions will surely notice a seemingly odd pattern recently commented on by Marty Lederman. On one hand, the court is quite “resolute” and “careful” in the imposition and monitoring of so-called minimization requirements and other orders controlling the management and dissemination of information acquired through electronic surveillance. On the other hand, the court seems super-indulgent of executive branch readings of the Foreign Intelligence Surveillance Act and USA PATRIOT Act that supposedly undergird the Government’s information acquisition authority in the first place. Marty speculates that the latter attitude may be nurtured by the one-sided advocacy that the court hears.

Although the court’s non-adversarial docket undoubtedly does shape its output, there is quite possibly another factor at work here. That is, the FISC may believe that acquiescing in the government’s creative statutory readings while taking seriously its own regulation and monitoring role may be the best option available to it for protecting the competing values at stake, including the rule of law.

If the FISC rejected the Government’s statutory arguments, it would have to face more pointedly the question whether the Constitution alone, through Article II, grants the executive branch the information-seeking authority it claims. If it answers negatively, two things follow. First, we would face the prospect of the decision going initially to the FISC Court of Review and, if upheld, then being transferred under seal to the Supreme Court, should the Government seek certiorari. How that would work in the Supreme Court is anyone’s guess—no procedural option is especially attractive. Second, the court might well be disabling the executive in protecting national security through an important initiative—an assessment the court might think itself ill-positioned to second-guess.
On the other hand, if the court were to affirm some realm of electronic surveillance authority that goes beyond what Congress has approved, that would necessarily be authority that the FISC would not be entitled to supervise. This may well look less attractive than keeping the Government within a statutory rubric, albeit read very broadly, which also authorizes the FISC to impose limiting implementation requirements. These requirements enable the court to instill some protection for privacy and some legal accountability, which the court does monitor rigorously. The executive apparently acquiesces in that judicial role—even, as with regard to bulk telephone records, where the court’s authority to impose such requirements might itself be deemed vulnerable to challenge.

The FISC’s institutional compromise, if I have correctly identified it, is hardly perfect. Its acquiescence in novel statutory interpretations looks like a disservice to a Congress that remains largely ignorant of those interpretations. The public forum surrounding legislative authorization is likely to be the only meaningful occasion for public deliberation on the proper contours for programs of electronic surveillance because there is quite likely to be no other context in which the executive branch will publicize the scope of what it thinks it needs to protect national security. If the FISC creates secret and unanticipated readings of Congress’s handiwork, the value of such public deliberation is plainly called into question.  It is notable also that the Government has on several occasions violated FISC orders. One may see these lapses as evidence of system weakness. On the other hand, the government’s apparent candor in revealing its lapses to the FISC and the court’s seriousness in responding might reveal, as Ben Wittes has argued, an oversight system of reassuring integrity.

A real possibility exists that, as an institutional compromise, the FISC’s balancing act may accomplish something quite important. As I have argued elsewhere, it is imperative as a matter of democratic, constitutional self-governance that the executive branch generally regard itself as bound by legislative delimitations of its powers.  An executive branch that thinks its authority is limited only by its unilateral assessments of its inherent discretionary powers is far more likely to overreach than an executive that thinks itself beholden to legislative authorization. By helping to stabilize government surveillance practice within a statutory framework, even if creatively interpreted, the FISC may well be operationalizing that insight. If so, that’s not a bad thing.

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