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FISA Shadow Court Operates Unchecked, Unbalanced

By Richard Adhikari
Jul 8, 2013 1:10 PM PT

The Foreign Intelligence Surveillance Court, which was created by the Foreign Intelligence Surveillance Act to exercise authority over the surveillance activities of the United States government, has been issuing rulings that assess broad constitutional questions and establish judicial precedents, all without oversight, The New York Times has reported.

FISA Shadow Court Operates Unchecked, Unbalanced

Among the most important is the court's carving out of an exception to the requirement for a warrant for searches and seizures as laid out in the Fourth Amendment to the U.S. Constitution.

"I would not go so far as to say that the FISA court is acting unconstitutionally, but the absence of any review by the Supreme Court, combined with the secrecy and non-adversary process, pushes it into a constitutional gray area," Evan Lee, a professor at UC Hastings College of the Law, told TechNewsWorld.

All federal courts may interpret the Constitution, and this includes the power to recognize exceptions "when warranted by the text, history and structure of the document," Lee continued. However, no court may amend the Constitution, and "it is troubling that the Supreme Court is not exercising any oversight of the FISA court's Fourth Amendment rulings."

The court's issuing of rulings in secret "does not in and of itself violate the Constitution," remarked Sharon Bradford Franklin, senior counsel for The Constitution Project. "However, the practice of having secret interpretations of the law -- especially if these interpretations are as extensive as reported -- undermines the principles of checks and balances upon which our constitutional government is founded."

Shadowy Court in a Shadowy World

The FISA court, whose existence has troubled the American Civil Liberties Union and other civil rights and privacy organizations in the U.S. for some years, made world headlines when former National Security Agency contractor Edward Snowden revealed that the agency was spying on Americans' communications.

The Court has apparently handed down more than a dozen classified rulings that have in effect created a secret body of law that gives the NSA vast powers to gather lots of data on Americans in its search for possible terrorists, spies and hackers, among others.

The 11-member court's rulings aren't subject to any public scrutiny. Further, only one side -- the government -- presents its case.

"Only the executive branch appears before the FISA court, and it does not follow our traditional adversary system," The Constitution Project's Franklin told TechNewsWorld.

Although the court's opinions can be appealed to the Foreign Intelligence Surveillance Court of Review -- and technically, to the Supreme Court -- "in general, it is unclear who would ever have the knowledge of the opinions and the legal standing to appeal," Franklin said. "Thus, there are not adequate checks and balances."

Fighting The Power

That lack of clarity concerning who has the legal standing to appeal the FISA court's rulings led the Electronic Privacy Information Center to file an emergency petition with the U.S. Supreme Court on Monday asking it to stop the NSA's domestic surveillance program covering Americans' phone records.

EPIC has filed for a writ of mandamus -- an order from a superior court to a lower court, often issued when the latter has exceeded its authority.

EPIC's argument is that the FISA court exceeded its statutory jurisdiction when it ordered the production of millions of domestic telephone records "that cannot plausibly be relevant to an authorized investigation."

The petition was filed over the FISA court's ordering Verizon Business Network Services on April 25 to turn over all telephone records for calls made wholly within the United States, including local calls, to the NSA. EPIC is a Verizon customer subject to the order.

"This is not a constitutional argument," EPIC Appellate Advocacy Counsel Alan Butler told TechNewsWorld, "but rather a statutory argument based on the court's misinterpretation of the FISA."

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