A Better Secret Court
By JAMES G. CARR, NYT
TOLEDO, Ohio — CONGRESS created the Foreign Intelligence Surveillance Court in 1978 as a check on executive authority. Recent disclosures about vast data-gathering by the government have raised concerns about the legitimacy of the court’s actions. Congress can take a simple step to restore confidence in the court’s impartiality and integrity: authorizing its judges to appoint lawyers to serve the public interest when novel legal issues come before it.
The court is designed to protect individual liberties as the government protects us from foreign dangers. In 1972, the Supreme Court ruled that the Nixon administration had violated the Fourth Amendment by conducting warrantless surveillance on a radical domestic group, the White Panthers, who were suspected of bombing a C.I.A. recruiting office in Ann Arbor, Mich. In 1975 and 1976, the Church Committee, a Senate panel, produced a series of reports about foreign and domestic intelligence operations, including surveillance by the F.B.I. of suspected communists, radicals and other activists — including, notoriously, the Rev. Dr. Martin Luther King Jr.
The Foreign Intelligence Service Act set up the FISA Court in response. To obtain authority to intercept the phone and electronic communications of American citizens and permanent residents, the government must only show probable cause that the target has a connection to a foreign government or entity or a foreign terrorist group. It does not have to show, as with an ordinary search warrant, probable cause that the target is suspected of a crime.
For decades, the court worked under the radar. That changed after 2005, when The New York Times disclosed a National Security Agency program of surveillance of e-mail to and from foreign countries. Though the surveillance was conducted outside of FISA (Congress later specified that FISA court approval was required), the disclosures brought the court to the public’s attention. Criticism of the court (on which I served for six years after 9/11, while the caseload grew enormously) revived recently after revelations that the N.S.A., without court orders specifying individual targets, gathered troves of data from companies like Google and Facebook.
(More here.)
TOLEDO, Ohio — CONGRESS created the Foreign Intelligence Surveillance Court in 1978 as a check on executive authority. Recent disclosures about vast data-gathering by the government have raised concerns about the legitimacy of the court’s actions. Congress can take a simple step to restore confidence in the court’s impartiality and integrity: authorizing its judges to appoint lawyers to serve the public interest when novel legal issues come before it.
The court is designed to protect individual liberties as the government protects us from foreign dangers. In 1972, the Supreme Court ruled that the Nixon administration had violated the Fourth Amendment by conducting warrantless surveillance on a radical domestic group, the White Panthers, who were suspected of bombing a C.I.A. recruiting office in Ann Arbor, Mich. In 1975 and 1976, the Church Committee, a Senate panel, produced a series of reports about foreign and domestic intelligence operations, including surveillance by the F.B.I. of suspected communists, radicals and other activists — including, notoriously, the Rev. Dr. Martin Luther King Jr.
The Foreign Intelligence Service Act set up the FISA Court in response. To obtain authority to intercept the phone and electronic communications of American citizens and permanent residents, the government must only show probable cause that the target has a connection to a foreign government or entity or a foreign terrorist group. It does not have to show, as with an ordinary search warrant, probable cause that the target is suspected of a crime.
For decades, the court worked under the radar. That changed after 2005, when The New York Times disclosed a National Security Agency program of surveillance of e-mail to and from foreign countries. Though the surveillance was conducted outside of FISA (Congress later specified that FISA court approval was required), the disclosures brought the court to the public’s attention. Criticism of the court (on which I served for six years after 9/11, while the caseload grew enormously) revived recently after revelations that the N.S.A., without court orders specifying individual targets, gathered troves of data from companies like Google and Facebook.
(More here.)
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