Both the New York Times and the Wall Street Journal ran stories about the Foreign Intelligence Surveillance Court this week, and I urge you to read them. The FISC, which the Times insists on calling the “FISA court” after the Foreign Intelligence Surveillance Act, has established a body of case law that significantly expands the federal government’s domestic surveillance powers, and it’s all secret. You’re not allowed to know what the FISC determines the NSA and FBI can legally do, because that would help terrorists. In June, when the Senate asked NSA director Gen. Keith Alexander whether FISC would ever make some of its rulings public, Alexander said:
I don’t want to jeopardize the security of Americans by making a mistake in saying, ‘Yes, we’re going to do all that.’
So “no,” then? Here’s a link to Orwell’s “Politics and the English Language,” just in case Gen. Alexander is reading this. We know someone in his office is.
We will have to take the general’s word for it that knowing certain things about the American legal system would jeopardize our security. Surely, security is not a word he would use simply as a shibboleth for authority. You can’t just throw security around, particularly in areas related to interpreting the law, where every word counts.
Take the word relevant, for example. According to the Journal story, FISC authorized the NSA to collect records of millions of Americans’ phone calls based on its interpretation of the Patriot Act, which allows government agencies to demand information that is “relevant to an authorized investigation” into international terrorism or foreign intelligence.
Apparently we are all relevant to an authorized investigation, which I assume investigates the question “who is a terrorist?” Mark Eckenwiler, until December the Justice Department’s authority on criminal surveillance law, describes FISC’s interpretation of relevant as meaning everything, in what he calls a “stretch” of previous legal interpretations. While relevance has always been applied broadly in criminal law, the word must surely preclude something—say, for example, information on all Americans.
We don’t know how the Patriot Act is being interpreted by courts, however, because all of FISC’s rulings are secret. The court does not hear from attorneys who argue against the government’s position, nor does it allow non-government witnesses. There is no adversarial system in the FISA courts, but the judges who serve insist that FISC is not merely a rubber stamp for NSA and FBI requests.
Meanwhile, according to the court, FISC heard approximately 1,800 requests for surveillance data last year. None of them was denied. There is a word for the kind of court that meets in secret and finds for the government 100% of the time, and it rhymes with schmangaroo. Given that FISC approves every request for surveillance and keeps secret its justifications for doing so, a cynic or a phenomenologist might ask what the difference is between FISC and no oversight at all.
Being told that the secret court has a well-argued reason why the secret government program that appears to violate the Fourth Amendment is just fine is, from an ordinary American’s standpoint, not materially better than simply being told to shut up. I’m sure it’s perfectly legal that the government is monitoring my phone and internet use, but I would like to read the opinion. It’s not enough to know that the opinion is out there, or that it’s all for my own good, because that is what an irresponsible government says, too.
The US government may or may not be irresponsible, but the secrecy of FISC makes it unresponsive. As Ezra Klein points out in Wonkbook, the Patriot Act is a law passed via democratic channels. Normally when the American people pass a law through our representatives, we also have a chance to see how that law is implemented and interpreted by the courts. If it sucks—if, for example, it inadvertently authorizes the NSA to spy on American citizens—we usually get to see that and work the levers of representative government accordingly.
In the case of the Patriot Act, we don’t get to see what the law does. We caught a glimpse thanks to a leaker who is now an international fugitive. The Patriot Act’s very name implies deception, and its implementation has resulted in unprecedented spying on and secrecy from the American people. We cannot know if it is being abused, because the federal government refuses to tell us what it thinks it means. The rule of law means nothing if we do not know the law. A court means nothing if we do not know how it rules.