The more we find out about the mostly secret inner workings of the U.S. Foreign Intelligence Surveillance Court, the more questions we should all have about the intersection of national security and Fourth Amendment restrictions on unreasonable searches by government authorities. Based on recent comments by U.S. Supreme Court Justices Elena Kagan and Stephen Breyer, the court is primed for an inevitable constitutional review of the National Security Agency’s program of gathering phone and Internet data from foreign suspects and U.S. citizens alike under provisions of the Patriot Act and the Foreign Intelligence Surveillance Act. That debate will surely center on the Fourth Amendment, but a lesser-known argument that has popped up in some cases challenging FISA wiretaps raises different constitutional objections to the NSA’s widespread data collection. And just as it was in California’s ban on gay marriage, Article III of the Constitution could be the linchpin of any Supreme Court decision on the legality of the NSA program.
First, I want to recap a pair of terrific Sunday pieces in which The Wall Street Journal and The New York Times reported on the ex parte legal precedent the FISC is setting, outside the view of anyone but the government officials asking the court to bless widespread data collection. The Journal’s piece, by Jennifer Valentino-DeVries and Siobhan Gorman, focused on the FISC’s broad interpretation of the word “relevant” in classified orders dating back to the mid-2000s. According to the Journal, the 11 judges on the surveillance court have moved away from the Supreme Court’s standard that government requests for information are “relevant” if they present a “reasonable expectation” that the information will be related to an ongoing investigation. Instead, the FISC apparently reasoned that anti-terror investigations are so different from ordinary criminal cases that a much broader category of information falls under the umbrella of relevance. The FISC’s secret widening of the definition of relevance, according to the Journal, seems to be the justification for the NSA’s collection of phone and Internet data from U.S. citizens under Section 215 of the Patriot Act.
The New York Times’s Eric Lichtblau reported that the FISC’s classified rulings “reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny.” In addition to expanding an exception to the Fourth Amendment’s warrant requirements when the government can identify “special needs” in terror cases, he wrote, the surveillance court has made new law governing intelligence related to cyberattacks and nuclear proliferation, serving as a “parallel Supreme Court” that will “most likely shape intelligence practices for years to come.”
The FISC’s rulings could all be deeply rooted in constitutional history. The judges’ opinions on relevance, special needs and other data-gathering justifications could be the most compelling decisions ever written, sweeping away any concerns about government overreaching through the force of reason and precedent. Unfortunately, we will probably never know whether that’s true because we will probably never see the FISC’s classified rulings. The American Civil Liberties Union and the Electronic Frontier Foundation have been engaged for years in Freedom of Information Act litigation with the Justice Department over access to FISC records, but as you can see from the extremely limited FISC public docket, the Justice Department has generally prevailed in shrouding FISC proceedings under the cloak of national security. I’ve found one published opinion from the surveillance court, as well as two rulings by the District of Columbia Circuit Court of Appeals stemming from FISC decisions, in 2002 and 2008. Despite an assertion in The New York Times’s story that the surveillance court has issued more than a dozen rulings empowering the government to collect our data, those scant few opinions are apparently the only ways we in the public realm can judge the FISC judges.
Some members of Congress asked the surveillance court earlier this year to release declassified versions of its rulings, but in a March 27 letter to Senator Dianne Feinstein (D-Calif.), the court’s presiding judge, U.S. District Judge Reggie Walton of Washington, said that it’s so difficult to separate the court’s legal reasoning from the specific facts before it that excising classified material “would result in a remnant void of much or any useful meaning.” Even issuing summaries of its interpretation of the law, Walton said, was problematic.