Thoughts on the Proposals to Make FISA More Friendly

By Carrie Cordero
Monday, August 12, 2013, 1:17 PM

President Obama was dead-on when he said the following in his August 9th press conference: "[P]robably what's a fair criticism is my assumption that if we had checks and balances from the courts and Congress, that the traditional system of checks and balances would be enough to give people assurance that these programs were run properly. You know, that assumption I think proved to be undermined by what happened after the leaks. . . .”

With this statement, the President identified a key problem in the debate over surveillance authorities---a debate that existed long before the Snowden leaks. The problem, as I have come to believe since leaving government three years ago, is that no matter how much oversight government officials claim is conducted, there are some people who are simply not convinced that the oversight is genuine and adequate. They either want much more information about the activities to be out in the open, or, they would end the activities altogether.

Today’s FISA collection is probably the most oversight-laden foreign intelligence activity in the history of the planet. Each variation of FISA surveillance under different sections of the law is implemented through specific processes for requesting the surveillance, special teams of career government attorneys who often specialize in the particular type of collection, minimization procedures that are appropriate and designed for that type of surveillance, and tailored oversight protocols that have been developed or improved in recent years to ensure that the surveillance is implemented lawfully and appropriately. Detailed reviews, audits, briefings, and reports are conducted and produced frequently by teams of Intelligence Community personnel and lawyers from the agencies themselves, the Justice Department, and the Office of the Director of National Intelligence. Members of Congress and their staffs devote substantial time and attention to intelligence oversight matters related to FISA.

It was important for the President to speak out in clear support of the need for the surveillance programs last Friday. For far too long this summer, it seemed like the Executive Branch left the Intelligence Community out there defending itself. And the appointment of a task force to look at additional reforms and avenues to increase transparency was a reasonable attempt at tamping down the criticism and taking control of the debate.

The President, however, appeared to predetermine at least one outcome of the task force by stating his support for inserting a new civil liberties advocate into the FISA process. This proposal needs more careful review. I will maintain an open mind as the proposals to implement this concept are rolled out. But as an initial reaction, there are both principled and practical reasons for exercising caution.

From a principled perspective, are we really going to start litigating foreign intelligence activities before taking action? What a precedent to set! If that is the future of conducting national security business, then why limit it to FISA surveillance? Why not litigate foreign intelligence surveillance that takes place pursuant to Executive Order 12333? There have been arguments for obtaining court approval for drone strikes before they occur, so we could throw those in there, too. You get the point. The government collects foreign intelligence information in order to protect the country from terrorism and other foreign security threats. Given that FISA surveillance is probably able to boast more oversight than other programs, why add more oversight to just FISA-authorized activities?

Moreover, while adding a civil liberties advocate to the FISA process might quiet some dissent in the short term, that will only be temporary. Because in order to protect the nature of the proposed surveillance activities, the advocate would have to be inside the government, or at least be granted security clearances and adhere to disclosure requirements. The advocate will eventually be just another participant in closed-door government deliberations. For these reasons, it is unclear how an additional advocate would be all that different from the current trifecta of executive, legislative and Congressional branch oversight.

Which brings us to the practical concerns. Adding a special advocate to evaluate surveillance activities for civil liberties issues actually duplicates the work that dozens of lawyers currently perform in the FISA process. A special office located within the Justice Department’s National Security Division (and its predecessor office) has performed this role since FISA was first enacted in 1978. The size of the office has grown substantially since 2001 to keep pace with both the volume and complexity of FISA matters. The office serves as a neutral party that evaluates the Intelligence Community’s requests for surveillance and prepares applications that are made to the FISA Court. It works with a large interagency team of lawyers who facilitate the presentation of applications for authority. Once requests are submitted for approval, they are evaluated by professional staff attorneys employed by the Court, and then by the judges themselves. The FISA process has been the subject of a number of reviews and reports over the years that have evaluated its historical faults and inefficiencies. Being under-lawyered is not one of them.

There may be meaningful steps that are worth exploring that would foster public confidence. For example, it might help if there were a more consistent framework for declassifying information related to these activities. The drip, drip, drip of declassifying certain orders is, in my view, not helping. The orders on their own do not provide the full context of the activities, and it is likely that releasing the underlying documents would expose too many sources and methods. Similarly, selected examples of operational successes are both complicated to accurately extract, and turn attention away from the broader goals of the activities. Developing a better method of communicating the value of national security surveillance activities to Congress and the public could help. Finally, protecting foreign intelligence operational, analytic and oversight personnel from the budget mess might be a good idea. Wouldn’t it be rich if personnel involved in the national security surveillance activities, and oversight activities in particular, were subject to furlough or other budget cuts even as the president embraces calls for a new layer of oversight bureaucracy?