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The collection of Americans’ personal information by intelligence agencies is one of the most intrusive powers the executive branch can exercise. (Image: via TechCrunch)

The Patriot Act’s Sunset is the Perfect Chance to Make the FISA Court More Like a Real Court

In the coming weeks, Congress must decide whether to renew the Patriot Act, which the National Security Agency (NSA) uses to collect Americans’ telephone records in bulk, regardless of whether they are suspected of any criminal or terrorist activity. These records can tell the government a lot about our private lives — whether we called a psychiatrist or a gun dealer, for example — and the debate likely will focus on how to protect Americans’ right to privacy against unwarranted intrusions. But there is another important issue at stake in the run up to the Patriot Act’s sunset: the role of the foreign intelligence surveillance court that supervises NSA programs.

Like the president and Congress, courts have limits on their authority. Under the Constitution, our courts don’t give advice — they decide concrete disputes. In practical terms, that generally means there must be at least two parties present in court, and they must disagree over the lawfulness of particular actions that one or more of them has taken.

There are exceptions. For obvious reasons, judges issue search warrants in criminal cases without the suspect being present in the courtroom. But the government eventually must notify that person, and he or she can then challenge the warrant in court. What courts don’t do is approve massive programs that affect millions of Americans on the basis of the government’s representations alone and insulate them from challenge by keeping their decisions secret.

But that’s exactly what the FISA court is doing under the Patriot Act. Section 215 of the law allows the government to obtain an order from the special court to get records kept by businesses — such as telephone companies, hotels and banks — if the government can show they are “relevant” to a foreign intelligence or international terrorism investigation. Even before the government began collecting Americans’ phone records in bulk, the procedure for approving Section 215 requests was questionable, because the government need not notify the subject of the search even after the investigation ends. That means there is rarely an opportunity for the opposing parties to present their case in court — a basic building block of a “case or controversy.”

But the FISA Court went further. At the government’s urging, the court secretly ruled that the phone records of all Americans could be deemed “relevant” if there were some relevant records — i.e., records relating to terrorist activity — buried within them. 

The court thus approved an entire NSA program to collect huge a database of Americans’ information. It did so without ever hearing from the other side of the legal dispute: there was no one present to represent the millions of Americans whose records are vacuumed up. And, unlike in the criminal search context, no one was notified of the surveillance, so there was no opportunity to bring a legal challenge after the fact.

The FISA court’s failure to hear from the other side isn’t the only constitutional shortcoming in its approval of bulk collection. The court ruled that it would be unlawful for NSA officials to search the collected records without reasonable articulable suspicion to believe the search terms (usually phone numbers) are associated with a terrorist group. But the court left it to the NSA to decide when that standard was met. That’s analogous to a judge instructing the police that they need probable cause to search houses and leaving it to the officers to decide which homes to search. Courts cannot punt to the executive branch the job of applying the law to the facts.

President Obama recognized that there’s a problem with this arrangement and asked the FISA court to review NSA requests to access its database of Americans’ phone records. This post-collection review looks much closer to a true judicial role, but (in addition to being reversible by the next president) it doesn’t legitimize the pre-collection proceedings. The court continues to authorize bulk collection that affects the legal rights of millions of Americans in a proceeding where only one side is represented and the question of how the law is actually applied is reserved for another day.

The solution is within reach. Last year, the Senate almost passed a law — the USA Freedom Act — to make clear that the type of bulk collection blessed by the court was not permitted. This would return the court to its proper role of deciding whether the legal standard of “relevance” is met in particular cases. The legislation also would have established a special advocate to ensure that the court hears both sides of the legal issue it’s being asked to decide. The Patriot Act’s coming expiration, and potential reauthorization, is the perfect opportunity to revisit this solution.

The collection of Americans’ personal information by intelligence agencies is one of the most intrusive powers the executive branch can exercise. Such programs require a strong check in the form of robust judicial review. The FISA court needs to act like a real court, and Congress should make sure it does so.

© 2021 Just Security

Elizabeth Goitein

Elizabeth (Liza) Goitein co-directs the Brennan Center for Justice’s Liberty and National Security Program, which seeks to advance effective national security policies that respect constitutional values and the rule of law.

Faiza Patel

Faiza Patel serves as Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law. She is also a member of the UN Human Rights Council’s Working Group on the Use of Mercenaries. Follow her on Twitter: @FaizaPatelBCJ

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