Congress and the President can say all they want to that everything about the surveillance is approved by the FISA Court. OK. But what do we know about this secret court? Some revelations this past weekend by the Wall Street Journal and the New York Times tell us a great deal that I, for one, didn’t know. For example, did you know that Chief Justice John Roberts was in charge?
The laws we live by aren’t just the bills Congress passes and the president signs. It’s what the courts decide those bills actually mean.
We’re used to that. The Affordable Care Act, for instance, says that states that don’t accept the Medicaid expansion lose all their Medicaid money. The Supreme Court decided that went too far. The law might still say that if you read the underlying bill, but it no longer means that. Now states can reject the Medicaid expansion without jeopardizing the rest of their Medicaid money — and many are.
But here’s the thing: When judges make the laws, Congress can always go back and remake the laws. The changes the court makes are public, and so is their reasoning. Both the voters and Congress know what the court has done, and can choose to revisit it.
The Foreign Intelligence Surveillance Court (FISA court) that governs the national surveillance state is also remaking the law. But it’s remaking the law in secret. The public has no opportunity to weigh in, and Congress can’t really make changes, because few know what the court is deciding, and almost no one can discuss the decisions without endangering themselves.
So that’s a real Catch 22.
Surveillance types make a distinction between secrecy of laws, secrecy of procedures and secrecy of operations. The expectation is that the laws that empower or limit the government’s surveillance powers are always public. The programs built atop those laws are often secret. And the individual operations are almost always secret. As long as the public knows about and agreed to the law, the thinking goes, it’s okay for the government to build a secret surveillance architecture atop it.
But the FISA court is, in effect, breaking the first link in that chain. The public no longer knows about the law itself, and most of Congress may not know, either. The courts have remade the law, but they’ve done so secretly, without public comment or review.
These rules have been remade in a court where the government is the only witness, and there’s no possibility for appeal, and all 11 judges were chosen by Chief Justice John Roberts, and 10 of the 11 judges were Republican appointees to the federal bench. This is not a court like any other court in the United States save for the secrecy. It’s a court pretty much unlike any other in the United States.
When asked who watches over the National Security Agency’s surveillance efforts, the administration says that the FISA courts do. Trite as it may be, that leads to the age-old question: Well, then who watches over the watchers?
The answer would be to rewrite the law but how does one do that with a dysfunctional Congress and a law with impacts that no one can discuss without violating it? As I said, a Catch-22. But there is a proposal by Senator Jeff Merkley of Oregon and a bi-partisan group of other senators to end some of the secrecy.
We should be discussing ways to rein in the FISA Court and modify the Patriot Act. Forget Edward Snowden. He can stay at the Moscow airport or get smuggled to South American. Fixing the law is what is important.
Let me end with Tom Tomorrow.
- Who Knew? Who’s In Charge Of The FISA Court? Apparently, John Roberts And Only John Roberts (theconservativetreehouse.com)
- Esquire:The Snowden Effect, Continued (esquire.com)
- A Proposal To Reform FISA Court Decisionmaking (volokh.com)
- Sunday’s Must Read: FISA Expands NSA Powers In Deep Secret (themoderatevoice.com)
- Wonkbook: The secret surveillance court is making secret surveillance laws (washingtonpost.com)
- Who’s In Charge Of The FISA Court? John Roberts, And Apparently Just John Roberts (outsidethebeltway.com)