What is the difference between secret law and no law at all? For American citizens contemplating the amorphous powers of the Foreign Intelligence Surveillance Court, and the shrouded body of law upon which its secret decisions are based, the distinction borders on trivial. Indeed, recent investigative reports suggest that both the court and the law it administers (and helped to create) exist largely outside the boundaries of established jurisprudence.
Due to the release of documents by former National Security Agency consultant Edward Snowden, and subsequent reporting by the news media, the dangers of this un-American exceptionalism are becoming known. The 11-member surveillance court operates in rotating shifts; most of the orders authorizing government surveillance have been signed by a single judge — whichever one is on duty at the moment. Each judge was appointed, without review, by a single man, Chief Justice of the U.S. John Roberts. Although a court of review can be empaneled to hear appeals, in effect, a lone judge, appointed by a lone judge, is the only barrier between the government's demand for intelligence and a citizen's constitutional right of privacy.
It hasn't been much of a contest. The court issued almost 1,800 surveillance orders last year. The number of government requests denied? Zero. We're no anti-government zealots. But when the government — any government — throws strikes by the thousands without ever once missing home plate, one suspects the umpire is too deeply compromised to properly call the game.
The court has fashioned its reading of the law in a similarly dubious manner. The Wall Street Journal reported this week that the court's interpretation of what information is "relevant" to government investigators has evolved in recent years to include huge databases encompassing the records of millions of Americans. In practice, it seems everything and everyone is "relevant" if the government says so.
Intelligence gathering is a vital function of government and a pillar of national security. But the unrestricted surveillance enabled by the court is inimical to a healthy democracy.
Fortunately, some members of Congress recognize the risk. Sen. Jeff Merkley, D-Ore., and several co-sponsors, including Sen. Mike Lee, R-Utah, support legislation to require the U.S. attorney general to declassify some opinions of the surveillance court. Should the attorney general conclude that declassifying a particular opinion would undermine security, the court could instead issue a summary of its decision. If even that proved too sensitive, the attorney general would be required to explain why to Congress.
The Merkley bill is a good start. But it's not sufficient to instill balance in a court that appears badly skewed. For that, the FISA statute that created the court will have to be amended. We recommend that Congress focus on two especially troubling elements.
First is the court's lack of an adversarial forum. The government presents its case to a judge, and the judge issues a ruling. No one represents the interests of those being monitored; no one plays defense to the government's prosecution. The trick here — and it's a dicey one — is to devise a fix that accommodates both adversity and secrecy without sacrificing speed. One idea is to establish a unit in the Justice Department to serve as an advocate for privacy. When justified, the office would challenge the legal basis of surveillance requests. It could even challenge the government's facts. At the very least, the presentation of an alternative view might arrest the court's drift toward national security myopia.
Second is the enormous power invested in the chief justice. No single person should appoint all members of the surveillance court without oversight. Chief Justice Roberts has assembled a court in which 10 of the 11 judges were appointed to the federal bench by Republican presidents; none seems particularly resistant to claims of executive power. That lopsided tally is proof enough of the system's faults.
There may be no simple remedy. The judges appointed to the surveillance court were all previously confirmed by the Senate; it seems excessive to require further confirmation. However, there is no reason that the appointments couldn't be made by rotating justices of the Supreme Court, with each making one appointment in turn. That would at least distribute power and, ideally, lead to more ideological diversity. Rep. Steve Cohen, D-Tenn., has proposed a system in which the chief justice would name three of the 11 judges, and each of the four congressional leaders would make two appointments each.
One way or another, it's up to Congress to fix the surveillance court. It should amend the FISA statute and reform the court to more convincingly emulate the character of American justice. The U.S. government is an occasionally maddening system of checks and balances, yet the surveillance court stands out as uniquely shielded from both. Sometimes, in government as in life, you don't know what you've got till it's gone.
This editorial was first published on Bloomberg View.