The FISA Court and the Amicus Curiae: A Battle for Transparency in Surveillance
The Foreign Intelligence Surveillance Act (FISA), passed in 1978, established a framework for the government to conduct surveillance of foreign nationals suspected of espionage or terrorism. While FISA’s original purpose was to balance national security with individual privacy, the landscape of communication technology has shifted dramatically since its inception. The rapid evolution of internet technologies and digital communications has presented a challenge to FISA’s existing framework, leading to calls for reform and raising concerns about the balance between security and privacy.
One of the key issues at the heart of this debate is the role of amicus curiae – "friends of the court" – in FISA proceedings. Amici curiae are individuals or organizations with expertise in a particular field who can provide additional insights and legal arguments to the court. Since the inception of FISA, the government has operated under a system of "ex parte" proceedings, meaning that the target of surveillance has no presence or representation in court. This has raised concerns about the lack of transparency and potential for abuse.
The proposed changes to FISA aim to address these concerns by broadening the role of amici curiae in FISA proceedings. By allowing amici to participate more actively, the court receives a wider range of perspectives, enhancing transparency and scrutiny of the government’s requests for surveillance warrants. This potential increase in oversight has come under fire from some officials, however, with Senator John Cornyn voicing strong opposition to these changes.
Cornyn’s primary concern, according to sources, is that the increased reliance on amici will lead to prolonged legal battles and delays in the surveillance process. He believes that amici will leverage their presence to seek access to classified information, ultimately tying cases up in discovery battles and potentially hampering the government’s ability to conduct critical surveillance operations.
"Cornyn is specifically concerned about delays that he believes will result from the court’s increased reliance on the amici, viewing the process as potentially tying up cases in discovery battles as experts vie with the government for access to classified files," stated a source familiar with Cornyn’s objections.
Cornyn’s concerns also extend to the potential for foreign adversaries to exploit the increased participation of amici, arguing that these changes could grant foreign nationals rights exceeding those of criminal defendants. "Cornyn claims the new rules threaten to grant foreign nationals greater rights than those of criminal defendants, something that foreign adversaries could exploit," a Senate source disclosed.
However, experts in the field have challenged Cornyn’s assertions, arguing that his concerns are exaggerated and misguided. Noah Chauvin, a former intelligence counsel for the US Department of Homeland Security and current assistant professor at Widener University Commonwealth Law School, dismissed Cornyn’s concerns as overblown. "In almost every instance, the presumption that amici will be appointed applies to a circumstance where the surveillance targets a US person," Chauvin asserted, adding that the only exception is when the surveillance presents "a novel or significant interpretation of the law."
Chauvin further clarified that even when amici utilize their new appellate rights, the government’s ability to conduct authorized surveillance under FISA would not be hindered. The surveillance would continue under the last issued warrant, even if it has expired. He also emphasizes the limited scope of amici access to information, highlighting that the government retains the ability to manage potential delays by proactively providing experts with necessary information. "The government has the ability to prevent delays at any time by simply providing experts with the information they need in advance, rather than forcing the court to debate what it’s required to disclose," Chauvin explained.
While acknowledging that greater reliance on amici may slow down the process in specific cases, Chauvin believes that this is a deliberate consequence, designed to foster greater accountability and transparency in the FISA process. "To the extent [amici] create friction, making it more difficult for the government to access Americans’ private information without demonstrating to a court that such access is necessary—that’s a feature, not a bug."
The potential for abuse of power in "ex parte" proceedings is a significant concern, especially considering the sensitive nature of the information handled under FISA. "Notably, FISA proceedings are, for obvious reasons, conducted ex parte, meaning the target of a surveillance order has no presence or representation in court," highlighting the need for increased oversight and transparency.
In addressing concerns regarding the lack of specific intelligence collection experience among amici, Senate sources supporting the proposed changes emphasize that this is not a new phenomenon. While some experts appointed by the FISA court possess intelligence experience, others are invited for their expertise in privacy, civil liberties, or communications technology. Ultimately, the court holds the authority to assess the necessary "legal or technical expertise" based on the specific matter at hand, ensuring that individuals chosen have the appropriate clearance for classified information.
The debate surrounding the role of amici curiae in FISA proceedings underscores the complex interplay between national security and individual privacy. While some argue that increased oversight risks hindering the government’s ability to effectively combat terrorism and espionage, others emphasize the vital role of transparency and accountability in safeguarding individual liberties in an increasingly technologically advanced world.
As the debate continues, it remains crucial to strike a balance that ensures both national security and individual privacy are adequately protected. The proposed changes to FISA, while facing opposition, represent a significant step towards fostering greater transparency and scrutiny within the FISA Court, potentially leading to a more robust and accountable system for conducting surveillance while upholding the fundamental rights of citizens. The ultimate impact of these changes will depend on how the court navigates the delicate balance between national security imperatives and safeguarding individual liberties, a challenge that continues to shape the contemporary landscape of privacy and surveillance.
