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Leaks Raise Debate Over the Secret Court That Approves Surveillance Programs

July 31, 2013 at 12:00 AM EDT
The role of the Foreign Intelligence Surveillance Court has come under scrutiny in the wake of leaks on NSA surveillance programs. Who serves on the FISA Court? And is there any oversight for the judges who oversee government surveillance programs? Jeffery Brown poses these questions to experts James Bamford and Steven Bradbury.
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JEFFREY BROWN: As new revelations of data gathering continue to come out, the role of the Foreign Intelligence Surveillance, or FISA, court has come under increasing scrutiny. We take a closer look now.

The story of the court goes back to 1978. The Senate’s Church Committee, among others, had chronicled surveillance abuses by the government brought to light in the Watergate scandal. One response, Congress created the FISA court to review warrants for national security investigations.

Many years and several amendments later, the Snowden disclosures of surveillance by the NSA have raised new questions.

On Sunday, for example, the Senate’s Democratic majority whip, Dick Durbin, argued that the court is hardly impartial.

SEN. RICHARD DURBIN, D-Ill.: It’s fixed in a way. It’s loaded. There’s only one case coming before the FISA court, the government’s case. Let’s have an advocate for someone standing up for civil liberties to speak up about the privacy of Americans when they make each of these decisions.

JEFFREY BROWN: But at today’s Senate hearing, Deputy Attorney General James Cole said there’s no clear precedent for changing the way warrants are approved.

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JAMES COLE, Deputy U.S. Attorney General: Traditionally, when you issue search warrants, when you issue wiretaps and things like that, in the criminal law, you don’t have an adversary process that takes place if there isn’t somebody on the other side. So there’s a legal tradition that the way we have been doing it is certainly one that we have done in other contexts.

JEFFREY BROWN: Another issue, the FISA court’s 11 judges are chosen by the chief justice of the U.S. Supreme Court and all of the current members have been selected by Chief Justice John Roberts.

Republican Senator Jeff Flake of Arizona raised that issue at today’s hearing.

SEN. JEFF FLAKE, R- Ariz.: There’s been some criticism that the process that we have for the selection of these judges may lead to more Republican judges being appointed than Democratic. Is that an issue that somebody ought to be concerned about, or have you seen any difference in decisions rendered?

JAMES COLE: I haven’t seen any decisions. The judges are judges. And they’re being guided by the law and not necessarily by politics, but that’s certainly a topic we would leave to the sound discretion of the Congress.

JEFFREY BROWN: Already, there are proposals in Congress bring raised to change the way the court operates and how its members are named.

And we raise these questions and more now with James Bamford, a journalist, lawyer and author of several books on the National Security Agency, and Steven Bradbury, head of the Office of Legal Counsel in the Justice Department during the George W. Bush administration.

Welcome to both of you.

JAMES BAMFORD, author: Thank you.

JEFFREY BROWN: Jim Bamford, we heard earlier this Gwen’s discussion about new revelations. What do you think of those and what do they tell us about this role of the FISA court?

JAMES BAMFORD: Well, these new revelations are really an expansive — look at a much more expansive eavesdropping capability.

We looked before at the telephone and the e-mail. Now, this is pretty much the Internet. And it’s very worrisome, in the sense that people when they communicate on the Internet are communicating basically their thoughts, their deepest thoughts in their minds a lot of times, their thoughts sometimes that they don’t want to share with anybody else.

So, if you have this mega-collection that’s going — and again, it raises the question of what oversight is there and what checks and balances are there? We didn’t see there were very many checks and balances on the other systems. And maybe the same thing applies here.

JEFFREY BROWN: All right. We will walk through some of those issues,.

But, first, generally, what’s your thought, Steven Bradbury?

STEVEN BRADBURY, former Department of Justice official: Well, I think it’s important to focus on what the government declassified and disclosed about the FISA process.

And two things I take from that. One, it shows that there was a lot of detail provided to Congress in 2009 and 2011 about the telephone metadata collection, great detail describing the collection, the scope, how it was used, the limitations.

JEFFREY BROWN: So, you’re saying it wasn’t just left to the court. Congress had a say as well.

STEVEN BRADBURY: That’s correct.

And the documents show that every member of Congress was invited to review those descriptions in Congress and so had the opportunity to understand the full scope. They also disclosed the FISA court order, the primary order for the telephone metadata collection. And I think it very clearly shows the degree of oversight, all of the protections and the limitations. It goes into great detail, very consistent with what the government has been describing in its hearings on the Hill.

JEFFREY BROWN: But you see that and you see not enough oversight?

JAMES BAMFORD: Well, I…

JEFFREY BROWN: Some people have used this rubber-stamp term.

JAMES BAMFORD: Well, I read the documents that the government released today on the — where they say they briefed every member of Congress on this program, but I saw nowhere in those documents where it described the full extent of it.

It said, this is a very big program, but it didn’t anywhere say that we’re targeting every single person in the United States, 300 million people. So that’s why you have this reaction from people in Congress that are saying that, well, we had no idea it was this big, that it was every single person, every single day, every single telephone call, the metadata from it.

JEFFREY BROWN: What’s the chief — the chief problem you have with the FISA court itself? As we said, it was set up in 1978 under some previous times of concern, right?

JAMES BAMFORD: That’s right. It was working very fine up until the Bush administration.

And that’s when the Bush administration decided to violate the law and go around the FISA court.

JEFFREY BROWN: How?

JAMES BAMFORD: Well, they decided that they didn’t trust the court to — that they felt the court was going to probably disapprove their plan for this warrantless eavesdropping program, so they decided to violate the Foreign Intelligence Surveillance Act and go around the court and do the warrantless eavesdropping without ever informing the court, although they told the chief justice, the presiding judge in the court, but not — asked the judge not to tell the other judges.

So you have this — after 9/11, you have this effort by the administration not only to bypass the court, but to weaken the court after these revelations were discovered. So that was what happened in the FISA Amendments Act, where they actually weakened the court. And I think that’s what’s changed a lot of the dynamics of the court since then.

JEFFREY BROWN: I know you see an alternative history here. Right?

STEVEN BRADBURY: I do.

I actually think this is a great story in terms of history for the United States, because I think we faced the challenges of 9/11. There were limitations seen in the system. It wasn’t workable for what needed to be done to protect the country. And Congress and the president over the years since have come together.

And we have new statutes, amendments to FISA, that have made the process more effective, more streamlined, and I think that’s been a very good story.

JEFFREY BROWN: But if the FISA court has approved it sounds like most everything that’s been brought to it, does that suggest that it is doing enough to look at all the data, look at the questions, raise the issues, the concerns that people have about privacy?

STEVEN BRADBURY: Well, in fact, in my experience, the FISA court and the legal advisers who are permanent staff to the court ask a lot of hard questions up front.

In other words, they get read-ahead copies of applications. There’s a lot of back-and-forth, a lot of testing, a lot of additional information provided. So there’s a good understanding of the legal basis and factual basis for applications when they’re actually signed and submitted so that the court process can move under efficiently and quickly.

JEFFREY BROWN: What do you think of that? What do you think needs to be done? What would you like to see done to strengthen the court?

JAMES BAMFORD: Well, there are a couple of things.

First of all, the court is packed, as somebody just said earlier. And you have got 11 judges — or you have got 10 out of 11 judges that are appointed by a chief judge who really appoints them as part of his own party. They’re all Republican appointees pretty much, conservative people. So you have got them very much packed in one ideological viewpoint.

And, second of all, it’s all ex parte. In other words, there’s only one side that argue argues in front of it, and that’s the government. So one of the different ways to get around that is you can appoint a sort of professional advocate who is fully cleared and can argue both sides.

This isn’t a normal wiretapping case, where you’re talking about one criminal defendant in a bank robbery or something. This is where you’re talking about 300 million people being — having their records taken. There’s no real comparison. And you can also have the judge — or have the judges appointed by the federal appeals court judges.

JEFFREY BROWN: Is this an area where we could get any agreement, that there are some reforms possible?

STEVEN BRADBURY: Well, I don’t think reforms are needed in the system. But, obviously, Congress will look at options. I don’t believe the chief justice has made any appointments based on partisan politics or who appointed which judges.

And we have a tradition in this country. When a federal judge has been confirmed to the bench for a lifetime appointment, the judge is not a political person at that point, and independent judgment is brought to bear. And I think that’s — I think the chief justice works with the Administrative Office of the Judiciary on these appointments, and it’s a question of which judges are interested in serving and have the time to serve.

There’s a lot of questions that go into that, and I have faith that the chief justice has done a good job. In terms of the advocate, difficult practical issues there. You can’t create a new office that’s not in the executive branch or not working under the court.

So it’s going to be in the system if you’re going to have a special advocate like that. And I’m not sure it would really achieve what the advocates of that favor.

JEFFREY BROWN: All right. Well, I know that and others are on the table now in Congress.

For now, we will leave it there. James Bamford, Steven Bradbury, thank you very much.

STEVEN BRADBURY: Thank you.

JAMES BAMFORD: Thank you, Jeff.