Tuesday, February 11, 2014
Tweet[IWS] CRS: REFORM OF THE FOREIGN INTELLIGENCE SURVEILLANCE COURTS: PROCEDURAL AND OPERATIONAL CHANGES [16 January 2014]
IWS Documented News Service
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Institute for Workplace Studies----------------- Professor Samuel B. Bacharach
School of Industrial & Labor Relations-------- Director, Institute for Workplace Studies
Cornell University
16 East 34th Street, 4th floor---------------------- Stuart Basefsky
New York, NY 10016 -------------------------------Director, IWS News Bureau
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Congressional Research Service (CRS)
Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes
Andrew Nolan, Legislative Attorney
Richard M. Thompson II, Legislative Attorney
January 16, 2014
[full-text, 26 pages]
Summary
Recent disclosures concerning the size and scope of the National Security Agency’s (NSA’s)
surveillance activities both in the United States and abroad have prompted a flurry of
congressional activity aimed at reforming the foreign intelligence gathering process. While some
measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions
of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make
procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a
specialized Article III court that hears applications and grants orders approving of certain foreign
intelligence gathering activities, and the Foreign Intelligence Surveillance Court of Review, a
court that reviews rulings of the FISC. This report will explore a selection of these proposals and
address potential legal questions such proposals may raise.
Due to the sensitive nature of the subject matters it adjudicates, the FISC operates largely in
secret and in a non-adversarial manner with the government as the only party. Some have argued
that this non-adversarial process prevents the court from hearing opposing viewpoints on difficult
legal issues facing the court. To address these concerns, some have suggested either permitting or
mandating that the FISC hear from “friends of the court” or amici curiae, who would brief the
court on potential privacy and civil liberty interests implicated by a government application.
While formally codifying the FISA courts’ authority in statute could arguably clarify the scope of
the court’s authority with respect to amici and encourage the courts to exercise that authority
more frequently, it is unclear what legal difference a codification of the amicus authority
ultimately makes, as the statutory authority is largely duplicative of the authority the FISA courts
already possess as a matter of their inherent power. Proposals to mandate, rather than permit, that
the FISC hear from an amicus might also fall within Congress’s considerable power to regulate
the practices and procedures of federal courts. Nonetheless, such mandatory amicus proposals are
uncommon and could potentially raise constitutional issues concerning the independence of the
FISC to control its internal processes. Such proposals may also prompt questions to the extent
that they conflict with constitutional rules about who can appear before federal courts and what
powers those individuals may wield when there.
In another attempt to promote greater judicial scrutiny of FISA applications, some have suggested
that Congress mandate that the FISC sit en banc—that is, conduct review by all 11 judges of the
court—when making “significant” interpretations of foreign intelligence statutes. Under current
law, the FISC is permitted in certain instances to hold a hearing or rehearing en banc, mainly to
ensure uniformity of FISC decisions and when addressing legal questions of exceptional
importance. Requiring that the FISC sit en banc does not appear to raise major constitutional
questions as such a proposal would likely not hinder the FISC from performing its core
constitutional functions, which primarily includes independently adjudicating matters before it
with finality.
There have also been calls to alter the voting rules of either the FISC, when sitting en banc, or the
Foreign Intelligence Surveillance Court of Review apparently in an effort to create a higher
threshold for government surveillance. While Congress has significant constitutional power to
govern the practice and procedure of the federal courts, including the two foreign intelligence
courts, it is unclear whether setting these voting rules falls within that power or, conversely,
whether it may intrude upon the core judicial function of these federal tribunals. Some could
argue that creating a higher voting threshold could pose a risk of interfering with the
independence of these courts. However, changing the voting rules could also be seen as not
mandating that a court reach certain conclusions and could appear to leave the ultimate decision-
making authority with the FISA judges.
Contents
Introduction ...................................................................................................................................... 1
Overview of the FISA Courts .......................................................................................................... 1
Jurisdiction of the FISA Courts ................................................................................................. 2
Judges and Staff of the FISA Courts .......................................................................................... 3
Operations of the FISA Courts .................................................................................................. 3
Congress’s Power to Regulate the Practice and Procedures of Federal Courts ............................... 5
FISA Reform and Amicus Curiae .................................................................................................... 9
Background on the Amicus Curiae .......................................................................................... 10
Allowing the FISC to Hear from an Amicus Curiae................................................................ 11
Requiring the FISC to Hear from an Amicus Curiae ............................................................... 13
Mandating an En Banc Panel of the FISC ..................................................................................... 16
History of En Banc Proceedings .............................................................................................. 16
Legal Issues with Requiring an En Banc Panel for “Significant Interpretations” of
FISA ..................................................................................................................................... 18
Altering Voting Rules of the FISC and the FISA Court of Review ............................................... 19
Contacts
Author Contact Information........................................................................................................... 22
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