Government’s Secret Surveillance Court May Be About to Get a Little Less Secret

The USA Freedom Act may foist some transparency on the notoriously opaque FISA court.

A copy of the US Foreign Intelligence Surveillance Court order requiring Verizon to give the National Security Agency (NSA) information on all landline and mobile telephone calls in its systems. Associated Press/AP

Fight disinformation: Sign up for the free Mother Jones Daily newsletter and follow the news that matters.


When the USA Freedom Act was passed last week, it was hailed as the first major limit on NSA surveillance powers in decades. Less talked about was the law’s mandate to open a secret intelligence court to unprecedented scrutiny.

The Foreign Intelligence Surveillance Court, often known as the FISA court after the 1978 law that created it, rules on government requests for surveillance of foreigners. Its 11 federal judges, appointed by the chief justice of the Supreme Court, consider the requests one at a time on a rotating basis. In closed proceedings, they have approved nearly every one of the surveillance orders that have come before the court, and their rulings are classified.

Privacy advocates say those secret deliberations have created a black box that keeps the public from seeing both why the government makes key surveillance decisions and how it justifies them. But the new law passed by Congress last week may shed some new light on these matters. “The larger step that the USA Freedom Act accomplishes is that it is bringing those things out to the public,” says Mark Jaycox, a legislative analyst at the Electronic Frontier Foundation, a digital privacy advocacy group. The new law mandates that FISA court rulings that create “novel and significant” changes to surveillance law be declassified—and it is up to the judges to determine if the cases reach that threshold—though only after review by the attorney general and the director of national intelligence. While FISA court rulings have been leaked and occasionally declassified, the new law marks the first time Congress has attempted to make the court’s decisions available to the public.

The law also requires the court to create an advisory panel of privacy experts, known as an amicus panel. When a judge considers what she considers a “novel or significant” cases, she will call on that panel to discuss civil liberties concerns the surveillance requests brings up. Judges can also use the panel in other cases as they see fit.

The USA Freedom doesn’t lay out how the amicus panel will work in detail. But privacy advocates say its mere existence will be an important step. “We know we will see the order and potentially that an amicus [a privacy panel member] is going to be there arguing against it. Those things are huge to us,” Jaycox says.

But while the USA Freedom Act calls for important FISA court rulings will be made public, there’s no guarantee they will be. For one, final say on declassification still rests with the executive branch rather than the judges themselves.

And while the judges’ input on the cases will still be important—if not final—says Liza Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, they have already shown a “sort of reflexive deference” to the government.

While FISA court rulings have been leaked and occasionally declassified, the new law marks the first time Congress has attempted to make the court’s decisions available to the public.

In fact, advocates say, judges have always had the powers outlined in the new law—to bring in consultants or recommend declassifying their opinions. “This is something the FISA court could have done all along,” says Amie Stepanovich, the US policy manager for privacy advocacy group Access. “They always could have chosen to be more transparent in their proceedings.” Privacy advocates hope that having these pre-existing powers now written into law means that judges will actually use them, but even that isn’t for certain.

“I think the transparency provisions are going to be effective for the judges who are inclined to support them and are going to be ineffective for the judges who aren’t,” says Steve Vladeck, a professor at American University’s Washington College of Law.

There are other procedural moves the government could use to limit what information is made public. The court could simply issue summaries of decisions that don’t include their key parts, or the executive branch could heavily redact them. “In theory, the executive branch could comply with this part of the statute by redacting 99 percent—everything but one sentence, essentially—of an opinion,” Goitein says.

She admits that specific tactic is unlikely—it would be an obvious and public skirting of the law’s intent—but stresses that even though the law makes important progress in disclosure, there are still many loopholes that could cut down on how much the public will get to see.

“I think the history strongly suggests that the intelligence establishment will take every single little bit of rope it has,” she says. “And then some.”

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

AN IMPORTANT UPDATE

We’re falling behind our online fundraising goals and we can’t sustain coming up short on donations month after month. Perhaps you’ve heard? It is impossibly hard in the news business right now, with layoffs intensifying and fancy new startups and funding going kaput.

The crisis facing journalism and democracy isn’t going away anytime soon. And neither is Mother Jones, our readers, or our unique way of doing in-depth reporting that exists to bring about change.

Which is exactly why, despite the challenges we face, we just took a big gulp and joined forces with the Center for Investigative Reporting, a team of ace journalists who create the amazing podcast and public radio show Reveal.

If you can part with even just a few bucks, please help us pick up the pace of donations. We simply can’t afford to keep falling behind on our fundraising targets month after month.

Editor-in-Chief Clara Jeffery said it well to our team recently, and that team 100 percent includes readers like you who make it all possible: “This is a year to prove that we can pull off this merger, grow our audiences and impact, attract more funding and keep growing. More broadly, it’s a year when the very future of both journalism and democracy is on the line. We have to go for every important story, every reader/listener/viewer, and leave it all on the field. I’m very proud of all the hard work that’s gotten us to this moment, and confident that we can meet it.”

Let’s do this. If you can right now, please support Mother Jones and investigative journalism with an urgently needed donation today.

payment methods

We Recommend

Latest

Sign up for our free newsletter

Subscribe to the Mother Jones Daily to have our top stories delivered directly to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate