By Cliff Montgomery – Aug. 27th, 2014
Congress now is considering several changes to the Executive Branch’s surveillance powers, thanks to the revelations of whistle-blowers like Edward Snowden.
Much of the controversy comes down to a couple of little-discussed courts set up by the Foreign Intelligence Surveillance Act (FISA)—the Foreign Intelligence Surveillance Court (FISC) and the FISA Court of Review.
The two FISA courts “review government applications to conduct electronic surveillance for foreign intelligence purposes,” according to a federal study of those courts released in May.
But “under the existing framework, the Chief Justice of the U.S. Supreme Court ‘designates’ existing federal judges to serve on the FISA courts,” continued the report released by the Congressional Research Service.
Such a process lacks democratic oversight and is ripe for potential abuse, say critics of the system. A number of Congressional proposals would change how the FISA court judges are selected, according to the report.
Below, The American Spark quotes major sections of the federal study:
“In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) after conducting sweeping investigations into perceived electronic surveillance abuses by the executive branch.” […]
“FISA established two courts—the Foreign Intelligence Surveillance Court (FISC) and the FISA Court of Review—which have jurisdiction to review government applications to conduct electronic surveillance for foreign intelligence purposes.”
“[…But] in the wake of revelations from June 2013 concerning the scope of orders issued by the FISC, many have questioned the current mechanism for reviewing the executive branch’s intelligence gathering practices.” […]
“Various proposals have been introduced in Congress to amend the law that authorizes such surveillance and to change the internal practices and procedures of the courts.
“This report focuses on those proposals that would amend the process for selecting the judges who serve on the FISC and FISA Court of Review.
“Under the existing framework, the Chief Justice of the U.S. Supreme Court ‘designates’ existing federal judges to serve on the FISA courts.“While critics have argued that the current process is partisan and lacks political accountability, transparency, and oversight, the Director of the Administrative Office of the U.S. Courts, acting on behalf of the Chief Justice of the Supreme Court, has expressed concern regarding proposals that would change the existing framework.
“Proposals that would alter the process for selecting FISA judges include S. 1460, the FISA Judge Selection Reform Act, which would effectively shift authority to the chief judges of the circuit courts H.R. 2761, the Presidential Appointment of FISA Court Judges Act, which would authorize the President to choose FISA judges with the advice and consent of the Senate and H.R. 2586, the FISA Court Accountability Act, which would permit Members of Congress to select FISA judges.
“To understand the potential legal issues implicated by these proposals, this report first briefly reviews the constitutional method for appointing federal judges.
“The report also surveys the process of ‘designation,’ an alternative method used by Congress that allows current federal judges to serve temporarily on another federal court without undergoing a separate constitutional appointment.
“Lastly, the report explores how a reviewing court might evaluate the constitutionality of these proposals that would shift the authority to select FISA judges away from the Chief Justice alone, and vest it in other officials within the judicial, executive, and legislative branches.”
