Today’s Constitution-maker is Vermont’s Democratic Senator Patrick Leahy, the longest-sitting current member of the U.S. Senate (since 1975), who is also chairman of the Senate Judiciary Committee. His position as the Judiciary chair gives him repeated opportunities to shape the meaning of the Constitution through changes in federal laws that have an impact on constitutional rights or duties. His most recent effort is two-fold: to bring out into the open the operations of the secret federal court that has the power to approve sweeping government monitoring of telephone and digital communications, and to try to make that court more aware of potential threats of such eavesdropping to individual privacy.
The news is filled these days – in the wake of former government analyst Edward Snowdown’s leaks about the National Security Agency’s global sweep of telephone and digital communications data – with references to the U.S. Foreign Intelligence Surveillance Court. That court is almost never mentioned without the word “secret” put in front of its formal name.
It is, in fact, the least transparent of any American tribunal shaping the laws that affect Americans’ daily lives. It also is a living contradiction of the historic idea, deeply embedded in English and American law, that the best way for a court to do its work is to have two sides appearing before it and arguing essentially opposite points, with the court then sitting as the neutral judge to decide.
From its creation by Congress in 1978, the FISA court, as it often is called, has met entirely in secret, has issued orders – almost never emerging in public – that allow the government to gather foreign intelligence by electronic techniques, and its actions are subject primarily to only occasion reviews by a higher, and also secret, appeals court.
And, from the outset, it has made its decisions after listening only to government lawyers, asking for surveillance orders. The communication companies that get FISA orders to hand over communications data to the government are not allowed to send a lawyer to that court, and they are not allowed even to say that they have received such an order. There are no appeals to challenge its orders, except appeals by the government when it is dissatisfied with what it got.
Of course, Congress has explicitly told that court that it must take into account the limitations of the Constitution when it issues orders or rules on its own authority to do so. Again, however, the government is the only one outside the court itself that can try to shape its constitutional interpretations. From time to time, one or more of the FISA court’s judges have mde public comments, insisting that the court operates independently as is not a “rubber stamp” for the government.
All of this secrecy, and essentially one-sided development of its actions, have been thought to be necessary for most of the past 35 years because of the highly sensitive nature of its duties, at the center of the U.S. government’s ability to try to discover and head off grave threats to America’s security, perhaps its very existence.
But the Snowdon leaks in recent months have generated a strong new wave of skepticism about the degree of secrecy that is necessary, and, indeed, about the legal soundness of a court’s operations when it listens to only one side of the issues before it. Some of the FISA court’s opinions interpreting its powers have become public, and they show that the government seldom fails to get what it seeks, and seldom loses a legal argument.
Various members of Congress are now beginning to explore whether the FISA court needs to be introduced to some more accountability – and not only to government officials and Congress, but to the public, too. And the new search is also canvassing ways to make sure that the FISA court hears from a defender of constitutional rights, including the right of privacy.
Senator Patrick Leahy of Vermont this week introduced a proposed new “USA FREEDOM ACT – with that title the short form for “Fulfilling Rights and Ending Eavesdropping, Dragnet-eollection, and On-line Monitoring.” It is 118 pages in length.
There are a multitude of proposed changes in the measure, and many of them have to do with public disclosure of the work of the court. But the proposal that may do more than anything to end potential excesses and abuses of the existing system is the creation of a new federal office, the “Office of Special Advocate.”
That office would have the specific task, before the FISA court, of “vigorously advocating…legal interpretations that protect individual privacy and civil liberties.” The occupant of that office, given some protection by a three-year term (which can be renewed), a promise of avoiding being fired except for “good cause,” and selection by a non-political process, would have a variety of ways to pursue such advocacy.
Among those, the Special Advocate could act as a consultant to companies that receive orders to turn over communications data, could appear before the FISA court (if the court grants a request to do so), and could appeal orders of that court to the higher, reviewing court and then, ultimately, to ask the Supreme Court to review a FISA court order. The proposed bill would remove any technical legal barriers to the Special Advocate having access to the levels of court review. The occupant of that office would, of course, have to have a high-level security clearance, and would need to have experience in the field of the FISA court’s work, according to the bill.
Many of the provisions of Senator Leahy’s bill will be deeply controversial, and thus likely to stir opposition from lawmakers and advocacy groups who fear risks to national security if the foreign intelligence gathering apparatus becomes too transparent. But that controversy will be heavily devoted to constitutional arguments, and Senator Leahy – and those who join in sponsoring similar bills – will have gotten the conversation started. And that is where Constitution-making sometimes begins.
Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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