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Udall Unveils Major Legislation to Reform FISA Courts

on August 5, 2013 - 8:13am

U.S. SENATE News:

WASHINGTON D.C. – U.S. Tom Udall, D-N.M., joined by Senators Richard Blumenthal, D-Conn., and Ron Wyden, D-Ore., unveiled two bills that would ensure FISA courts properly balance the need to protect national security with constitutional and statutory requirements to safeguard individual rights to privacy and liberty.

The first bill, the FISA Court Reform Act of 2013, would create a Special Advocate with the power to argue in the FISA courts on behalf of the right to privacy and other individual rights of the American people. The second bill, The FISA Judge Selection Reform Act, would reform how judges are appointed to the FISA courts to ensure that the court is geographically and ideologically diverse and better reflects the full diversity of perspectives on questions of national security, privacy, and liberty.

"The reports about widespread surveillance programs have shown us that there is real reason to question whether civil liberties can be protected by a secret court, using secret law, issuing secret decisions," said Udall, a former federal prosecutor. "Americans deserve the assurance that their civil liberties are not being swept aside behind closed doors. These measures would help ensure the FISA courts look and act like actual courts, which balance individual rights to privacy and liberty with the government’s need to protect against national security threats."

Recent revelations have shed new light on the size and scope of the nation’s foreign surveillance activities and the ability of the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review – collectively, the FISA courts – to provide effective oversight of these operations.

For example, in its 33-year history, the FISA courts have rejected just 11 out of nearly 34,000 surveillance requests made by the federal government, which raises questions about whether they provide a meaningful check and balance on government surveillance. The bills would reform the FISA courts to ensure they serve this crucial check-and-balance function.

The FISA Court Reform Act of 2013 would ensure that the FISA courts could only issue significant interpretations of law after arguments for and against any expansion of government surveillance are heard and considered. Over the last three decades, the FISA courts’ case law (i.e. decisions, precedents) has evolved through a non-adversarial, “ex-parte” process in which the government’s interpretation of the facts and law, including its statutory powers, is the only view heard on national security issues brought before the FISA courts.

Although in ordinary criminal proceedings surveillance authorizations or search warrants are issued after a similar ex parte process, the legal principles governing this process come from judicial decisions regarding their admissibility or other issues – decisions issued after arguments for and against the issue before the court were heard and considered. The process of the FISA courts is not guided by such principles. In fact, the FISA courts can drastically expand government surveillance without any party other than the government having an opportunity to know or weigh in. The FISA Court Reform Act of 2013 would change this.

The FISA Judge Selection Reform Act would reform how judges are appointed to the FISA courts to ensure that the court is geographically and ideologically diverse and better reflects the full diversity of perspectives on questions of national security, privacy, and liberty. Currently, the eleven judges of the FISC and the three judges of the Foreign Surveillance Court of Review are designated solely by the Chief Justice of the United States.

This system has failed to produce a panel of FISA judges representing diverse perspectives. For example, ten of the 11 judges currently serving on the Foreign Intelligence Surveillance Court were appointed to the federal bench by Republican presidents, and since Chief Justice Roberts began designating federal judges to the FISA courts in 2005, 86 percent of his designees have been Republican appointees. Furthermore, half of the Chief Justice’s choices have been former executive branch officials.

Additionally, the FISA Judge Selection Reform Act would change how Foreign Intelligence Surveillance Court of Review judges are appointed by requiring the approval of five Associate Justices of the Supreme Court to confirm a designation of the Chief Justice. This should have a moderating effect on the appellate FISA court, filtering out candidates who could present a strong appearance of bias.


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