By Cliff Montgomery – Mar. 25th, 2014
These days, federal spies keep a constant watch on U.S. citizens as government officials discuss a number of changes to such questionable activity. With so much at stake, it’s understandable that people might hope to find an easy-to-understand legal statement that reveals the essential matters every citizen needs to know. The American Spark has you covered.
A recent report from the Congressional Research Service discusses these issues in a straight-forward manner. Below, the Spark offers major quotes from this fascinating study:
“The Foreign Intelligence Surveillance Act (FISA) of 1978 was the product of sweeping congressional investigation and deliberation prompted by perceived electronic surveillance abuses by the executive branch. Among other things, FISA established the Foreign Intelligence Surveillance Court (FISC) to review government applications to conduct electronic surveillance for foreign intelligence purposes and the Foreign Intelligence Surveillance Court of Review (FISA Court of Review) to review the decisions of the FISC. In the wake of revelations in June 2013 concerning the scope of orders issued by the FISC, many have questioned the efficacy of the current mechanisms for reviewing the executive branch’s intelligence gathering practices. While some have proposed altering the underlying substantive law that regulates such surveillance, other proposals address the practice and procedures of authorizing such surveillance activities. […]
“Recent disclosures concerning the size and scope of the National Security Agency’s (NSA’s) surveillance activities both in the United States and abroad have prompted a flurry of congressional activity aimed at reforming the foreign intelligence gathering process.
“While some measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court that hears applications and grants orders approving of certain foreign intelligence gathering activities, and the Foreign Intelligence Surveillance Court of Review, a court that reviews rulings of the FISC.
“This report will explore a selection of these proposals and address potential legal questions such proposals may raise.
“Due to the sensitive nature of the subject matters it adjudicates, the FISC operates largely in secret and in a non-adversarial manner with the government as the only party. Some have argued that this non-adversarial process prevents the court from hearing opposing viewpoints on difficult legal issues facing the court. To address these concerns, some have suggested either permitting or mandating that the FISC hear from ‘friends of the court’ or amici curiae, who would brief the court on potential privacy and civil liberty interests implicated by a government application.
“While formally codifying the FISA courts’ authority in statute could arguably clarify the scope of the court’s authority with respect to amici and encourage the courts to exercise that authority more frequently, it is unclear what legal difference a codification of the amicus authority ultimately makes, as the statutory authority is largely duplicative of the authority the FISA courts already possess as a matter of their inherent power.
“Proposals to mandate, rather than permit, that the FISC hear from an amicus might also fall within Congress’ considerable power to regulate the practices and procedures of federal courts.
“Nonetheless, such mandatory amicus proposals are uncommon and could potentially raise constitutional issues concerning the independence of the FISC to control its internal processes. Such proposals may also prompt questions to the extent that they conflict with constitutional rules about who can appear before federal courts and what powers those individuals may wield when there.
“In another attempt to promote greater judicial scrutiny of FISA applications, some have suggested that Congress mandate that the FISC sit en banc—that is, conduct review by all 11 judges of the court—when making ‘significant’ interpretations of foreign intelligence statutes.
“Under current law, the FISC is permitted in certain instances to hold a hearing or rehearing en banc, mainly to ensure uniformity of FISC decisions and when addressing legal questions of exceptional importance.
“Requiring that the FISC sit en banc does not appear to raise major constitutional questions as such a proposal would likely not hinder the FISC from performing its core constitutional functions, which primarily includes independently adjudicating matters before it with finality.
“There have also been calls to alter the voting rules of either the FISC, when sitting en banc, or the Foreign Intelligence Surveillance Court of Review apparently in an effort to create a higher threshold for government surveillance.
“While Congress has significant constitutional power to govern the practice and procedure of the federal courts, including the two foreign intelligence courts, it is unclear whether setting these voting rules falls within that power or, conversely, whether it may intrude upon the core judicial function of these federal tribunals.
“Some could argue that creating a higher voting threshold could pose a risk of interfering with the in dependence of these courts. However, changing the voting rules could also be seen as not mandating that a court reach certain conclusions and could appear to leave the ultimate decision-making authority with the FISA judges.”
