What A New Surveillance Court Could Look Like

Aug 2, 2013
Originally published on August 2, 2013 5:19 pm
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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.

MELISSA BLOCK, HOST:

And I'm Melissa Block. Recent disclosures about NSA's surveillance had focused attention on the Foreign Intelligence Surveillance court or FISA court. That court authorizes requests for warrants to collect phone and Internet data. Eleven judges sit on the court. They're appointed by the Supreme Court's Chief Justice, John Roberts. The court's proceedings are secret and only the government appears as a petitioner.

Well, now, three Democratic Senators have introduced legislation that would change the way the FISA court operates. Senator Richard Blumenthal of Connecticut is the lead sponsor of the bills, and he joins me now from Hartford. Senator Blumenthal, welcome to the program.

SENATOR RICHARD BLUMENTHAL: Thanks so much. Great to be with you.

BLOCK: I want to start by asking you about one of your bills that would create a special advocate to argue for privacy rights before the court. As we mentioned, it's just the government, currently, that makes its case before the FISA court. How would that work and why do you think it's necessary?

BLUMENTHAL: The special advocate is necessary because right now, the court hears only one side, only the government's side. Someone needs to test and challenge the government's contention that the warrant is not only necessary but also legal.

BLOCK: How would the special advocate that you're recommending here, how would he or she be chosen? Who would that person be?

BLUMENTHAL: The special advocate could be chosen by the courts or by appointment of the president, and the special advocate would be a lawyer or office of lawyers who are cleared for security so there would be no threat to improper disclosure. Also, no delay. Speed and security are important. And the special advocate's client, really, is the Constitution. And sadly, constitutional principles now need zealous advocacy more than ever.

BLOCK: Let me ask you about this critique which comes from former Homeland Security Assistant Secretary Stewart Baker. And he wrote this: When judges review wiretap orders or search warrants for mafia chieftains or drug dealers, there's no advocacy on behalf of the suspect. He asks, why in the world would we offer more protection to al-Qaida? How would you respond to that?

BLUMENTHAL: He's right that when there are wiretaps or searches in criminal cases, the permission is obtained from the court, X party as it's called, in other words, in secret from the judge or the grand jury. But at some point, the evidence has to be admitted at trial. At some point, the individual whose phone is tapped or whose house is searched has to be notified and then can challenge that activity by the government.

In this instance, nobody knows. It's secret and nobody has the standing or the right to challenge. No other court in our nation operates the way this FISA court does.

BLOCK: Senator Blumenthal, your second bill would change the way that FISA court judges are appointed. Why do you think that's necessary?

BLUMENTHAL: You know, in judicial proceedings, perception is often as important as reality. Right now, the perception is, rightly, that the chief justice of the United States, without any accountability, acting alone and often without anybody knowing why he's picking one judge or another selects all the members of the FISA court. I think there should be greater diversity ideologically and geographically.

This court, right now, is a black box. It is so contrary, an anomaly, so opening it with greater transparency and disclosure, having a special advocate to represent the other side and having some wider diversity through the appointment or designation of judges for the FISA court by the chief justice, as I proposed, of the circuit courts around the country is, in my view, a way to make these courts not only more effective but more fair.

BLOCK: Senator Blumenthal, all of your co-sponsors on these bills are Democrats. Does that speak to a lack of bipartisan will on the things that you're proposing here?

BLUMENTHAL: There is strong bipartisan will to improve this process and protect American privacy. It's a value that appeals to both sides of the aisle. There's nothing Republican or Democratic about the United States Constitution or the Bill of Rights, and many Republican Senators have expressed to me that they're very receptive and eager to consider joining.

BLOCK: But they didn't sign on.

BLUMENTHAL: They have not yet signed on, but publicly and privately, they have been very receptive to this basic idea that there needs to be some adversarial process and the idea of selecting the judges in a different way has appeal as well.

BLOCK: Senator Blumenthal, thanks for your time.

BLUMENTHAL: Thank you.

BLOCK: That's Senator Richard Blumenthal, Democrat of Connecticut. Transcript provided by NPR, Copyright NPR.