New York, NY – The Foreign Intelligence Surveillance Court is no longer serving its constitutional function of providing a check on the executive branch’s ability to obtain Americans’ private communications, concludes a new report released today by the Brennan Center for Justice at NYU School of Law.
What Went Wrong with the FISA Court finds that dramatic shifts in technology and law have changed the role of the Foreign Intelligence SurveillanceCourt (FISA Court) since its creation in 1978 — from reviewing government applications to collect communications in specific cases, to issuing blanket approvals of sweeping data collection programs affecting millions of Americans.
These fundamental changes not only erode Americans’ civil liberties, but likely violate Article III of the U.S. Constitution, which limits courts to deciding concrete disputes between parties rather than issuing opinions on abstract questions. The FISA Court’s wholesale approval process also fails to satisfy standards set forth in the Fourth Amendment, which protect against warrantless searches and seizures.
“Today’s FISA Court does not operate like a court at all, but more like an arm of the intelligence establishment,” said Elizabeth Goitein, co-author of the report and co-director of the Liberty and National Security Program at the Brennan Center for Justice. “The Constitution’s vision of the judiciary does not include issuing secret orders approving mass surveillance programs. The court has veered sharply off course, and nothing less than a fundamental overhaul of surveillance oversight practices will restore it to its constitutional moorings.”
“Although the FISA Court is held up as a bulwark against overbroad spying, it barely fulfills that role,” said Faiza Patel, co-author of the report and co-director of the Center’s Liberty and National Security Program. “The court’s blanket approval of programs that sweep up the personal information of millions of Americans looks nothing like a warrant or any other accepted function of a court. As Congress considers surveillance reformthis year, it must look seriously at overhauling the FISA Court to restore its role as a robust protector of Americans’ privacy.”
The report recommends several steps Congress should take to help restore the FISA Court’s legitimacy, including:
- Require the government to obtain the FISA Court’s approval whenever it seeks to obtain Americans’ business records or communications for foreign intelligence purposes.
- Ensure those affected by surveillance are represented in FISA Court proceedings and allow individuals to challenge surveillance programs in federal courts.
- Address Fourth Amendment concerns by ensuring the collection of foreign intelligence actually relates to national security and does not make an end-run around constitutional standards for criminal investigations.
Read the report here.