The Yale Law Journal

VOLUME
131
2021
NUMBER
2
November 2021
370-781

Introducing Independence to the Foreign Intelligence Surveillance Court

National Security

abstract. The Foreign Intelligence Surveillance Court (FISC), which reviews government applications to conduct surveillance for foreign intelligence purposes, is an anomaly among Article III courts. Created by the Foreign Intelligence Surveillance Act (FISA) in 1978, the FISC ordinarily sits ex parte, with the government as the sole party to the proceedings. The court’s operations and decisions are shrouded in secrecy, even as they potentially implicate the privacy and civil liberties interests of all Americans. After Edward Snowden disclosed the astonishing details of two National Security Agency mass surveillance programs that had been approved by the FISC, Congress responded with the USA FREEDOM Act of 2015. The bill’s reforms included the creation of a FISA amicus panel: a group of five, security-cleared, part-time, outside attorneys available to participate in FISC proceedings at the court’s discretion. Policy makers hoped to introduce an independent voice to the FISC that could challenge the government’s positions and represent the civil liberties interests of the American people. With the FBI’s investigation of Trump campaign advisor Carter Page in 2016 and 2017 raising new concerns about the FISC’s one-sided proceedings, it is now imperative to assess the FISA amicus provision: how it has functioned in practice since 2015, what effects it has had on foreign intelligence collection, and whether it has achieved the objectives that motivated its creation.

To conduct this assessment and overcome the challenges of studying a secret court, this Note draws upon the first systematic set of interviews conducted with six of the current and former FISA amici. This Note also includes interviews with two former FISA judges and three former senior government attorneys intimately involved in the FISA process. Using these interviews, as well as declassified FISA material, this Note presents an insiders’ view of FISC proceedings and amicus participation at the court. The Note arrives at three main insights about the amicus panel. First, amicus participation at the FISC has not substantially interfered with the collection of timely foreign intelligence information. Second, the available record suggests that amici have had a limited impact on privacy and civil liberties. Third, there are significant structural limitations to what incremental reforms to the existing amicus panel can accomplish. Instead, this Note supports the creation of an office of the FISA special advocate—a permanent presence at the FISC to serve as a genuine adversary to the government. While Congress considered and rejected a FISA special advocate in 2015, this Note reenvisions the original proposal with substantive and procedural modifications to reflect the lessons of the past six years, as well as with a novel duty: oversight of approved FISA applications. This Note’s proposal would address both the limitations of the FISA amicus panel that have become manifest in practice and the new Carter Page-related concerns about individual surveillance.

author. Yale Law School, J.D. expected 2022. My deepest thanks to Oona Hathaway for her dedicated mentorship and generous support. I am immensely grateful to Jim Baker, John Cline, Ashley Gorski, Travis LeBlanc, Bob Litt, Jeremy Rabkin, Hon. Laurence H. Silberman, Andrew Weissmann, and Marcy Wheeler for sharing their invaluable comments and expertise. For their exceptionally patient and careful editing, I am indebted to the editors of the Yale Law Journal, especially Eliane Holmlund. And, of course, I must acknowledge the many friends of the Foreign Intelligence Surveillance Court who spoke with me confidentially. All errors and omissions that remain are my own. A previous version of this Note was awarded Yale Law School’s Edgar M. Cullen Prize for the best paper by a first-year student and the Burton H. Brody Prize for the best paper on constitutional privacy.

Introduction

When the Foreign Intelligence Surveillance Court of Review (FISCR) met for the first time in its twenty-four-year history in 2002, the atmosphere was nothing short of surreal. The secret appellate court issued no advance notice of the hearing, though news had trickled out in Washington by that same morning.1 Twelve senior government attorneys crowded into a secure room at the Department of Justice (DOJ) for the hearing, which was presided over by three federal judges who had never expected to hear a case when they had been appointed to the court.2 Staffers from the Senate Intelligence and Judiciary Committees, who had caught wind of the hearing, were turned away at the door.3

It was an historic occasion: for the first time,4 the federal government was appealing a ruling from the Foreign Intelligence Surveillance Court (FISC), the secret court that oversees government requests to conduct surveillance under the Foreign Intelligence Surveillance Act (FISA).5 Leading the government’s appeal was none other than the Solicitor General of the United States, Ted Olson. But perhaps the most surreal detail was this: as Olson was presenting the government’s appeal of certain restrictions imposed by the FISC on electronic surveillance, there was no opposing party in the courtroom to challenge the government’s assertions. As one of the three FISCR panelists, Judge Guy, observed: “This is a strange proceeding because it is not adversarial. It is ex parte. And if one were to just read the transcript of this hearing today one might think that the adversary, if there was one, is . . . the FISC.”6

There was no such fanfare, and no such self-awareness about the strangeness of ex parte proceedings, when the Federal Bureau of Investigation (FBI) sought approval from the FISC for the electronic surveillance of Carter Page, a foreign-policy advisor to President Trump between 2016 and 2017. While the USA FREEDOM Act, passed in 2015, formalized the process of appointing an outside attorney, or amicus, in a limited subset of FISA matters,7 the Carter Page matter did not fall into one of the categories of FISA cases envisioned by the statute for outside scrutiny.8 In routine fashion, four different FISC judges, in strictly ex parte proceedings, approved the initial application and three successive renewals for the FBI’s surveillance of Page.9 DOJ’s Inspector General (IG) later tore apart the four FISA applications in the Page investigation, finding “so many basic and fundamental errors,” including factual inaccuracies and omissions of exculpatory information.10 Yet as the target of these FISA orders, Page never received the opportunity to examine and challenge the facts presented in the underlying FISA applications. The ex parte nature of FISA proceedings means that these errors would likely have never seen the light of day had it not been for the public furor surrounding the FBI’s investigation into the alleged ties between the Trump 2016 campaign and the Russian government.11

Throughout the history of the FISC and FISCR, the imprimatur of the judiciary has empowered and legitimated the executive branch’s use of secret electronic surveillance for foreign intelligence objectives. A political controversy about the abuses of the U.S. intelligence community led to the creation of the FISC and FISCR in 1978 as oversight institutions.12 Subsequent reforms in 2015 were likewise driven by public revelations of excesses and flaws in intelligence collection.13 In each of those historical moments, the three branches of government reached political settlements under which the executive branch agreed to subject its foreign intelligence surveillance activities to an evolving and mutually acceptable statutory regime overseen by secret courts.14

As DOJ itself has acknowledged, the government’s surveillance power under FISA is “one of DOJ’s most intrusive investigative authorities, and the use of it unavoidably raises civil liberties concerns.”15 Unlike ordinary criminal wiretaps and traditional search warrants, which “are granted in ex parte hearings but can potentially be subject to later court challenge, FISA orders generally have not been subject to scrutiny through subsequent adversarial proceedings.”16 Thus, while the FISC and FISCR are Article III courts, their ex parte, in camera operations run counter to two fundamental Article III values: transparency and adversarialism.17 In each moment of public controversy, policy makers have used these judicial values as tools to craft political compromises about foreign intelligence surveillance. The level of transparency and degree of adversarial participation in the FISC have become ratchets to calibrate an oversight regime to quell the political firestorm of the day.

Reform measures passed by Congress in response to surveillance controversies have led to some innovations. After Edward Snowden disclosed the astonishing details of two National Security Agency (NSA) mass surveillance programs that had been approved by the FISC,18 Congress responded with the USA FREEDOM Act of 2015.19 The bill’s reforms included the creation of a FISA amicus panel: a group of five, security-cleared, part-time, outside attorneys available to participate in FISC proceedings at the court’s discretion.20 Policy makers hoped to introduce an independent voice to the FISC and FISCR that could challenge the government’s positions and represent the civil liberties interests of the American people.21 While FISA judges already possessed the inherent authority to appoint amici, the availability of precleared attorneys formalized and increased the frequency of amicus appointments to what were previously ex parte hearings.22

With the Carter Page investigation raising new concerns about the FISC’s one-sided proceedings, it is now imperative to assess the FISA amicus panel: how it has functioned in practice since 2015, what effects it has had on foreign intelligence collection, and whether it has achieved the objectives that motivated its creation. Outsiders seeking to study the impact of the amicus panel face significant challenges. Given the classified nature of proceedings before the FISC, only the few participants who are involved in its proceedings have direct access to them, and they are not permitted to discuss their work publicly. The FISC only selectively declassifies documents from its proceedings, and those that are made public are often heavily redacted and may not constitute a representative sample.23

To conduct this assessment and overcome the challenges of studying a secret court, this Note draws upon the first systematic set of interviews conducted with six of the current and former FISA amici. For this Note, I contacted all seven attorneys who have served on the amicus panel, as well as attorneys who have been appointed as amici in specific FISA cases. Six amici, past and present, agreed to be interviewed about their experiences.24 While there have been other valuable reports on the FISA amicus provision based on the publicly available record and declassified FISA documents,25 this Note contributes novel insights and details based upon the amici’s first-hand accounts.26 This Note also draws upon interviews with two former FISA judges and three former senior government attorneys intimately involved in the FISA process to present a more comprehensive picture of how the FISA amicus provision operates in practice.27

Part I of this Note evaluates the history and development of adversarial participation in the FISC, as Congress has periodically recalibrated the level of outside involvement in response to public controversies. Part II presents an insiders’ view of FISC proceedings and amicus participation at the court. In particular, it assesses how the FISA amicus provision has worked in practice since 2015, drawing extensively upon interviews with not only FISA amici, but also a former FISA judge and high-level government attorneys. This Part finds that amicus participation at the FISC has not substantially interfered with the collection of timely foreign intelligence information. Yet the available record also suggests that the amici have had a limited impact on privacy and civil liberties.

Part III analyzes recent FISA reform proposals in light of this interview data and argues that incremental reform within the existing amicus system will be inadequate to protect the privacy and civil liberties interests of the American people implicated by the government’s foreign intelligence surveillance activities. Instead, in Part IV, this Note argues for the creation of a FISA special advocate: a permanent, institutional presence to serve as a genuine adversary to the government in the FISC and FISCR. This argument builds upon the academic and policy proposals that first developed the concept of a FISA special advocate during the USA FREEDOM Act debate from 2013 to 2015,28 but this Note reenvisions the original proposal by contributing procedural and substantive modifications reflecting the lessons of the past six years. This Note also proposes a novel duty of the special advocate: oversight of approved FISA applications. This Note’s proposal would address both the limitations of the FISA amicus provision that have become manifest in practice and the new concerns raised by the Page investigation about individual surveillance under FISA.