The FISA court is exactly the type of secret tribunal that fanned the flames of revolution

FISA court secrecy must end


In 33 years, the FISA court has rejected just 11 of 34,000 requests, the author writes. | AP Photo

By SEN. RICHARD BLUMENTHAL | 7/14/13 11:15 PM EDT

...

This secretive process has given us a FISA court in which, at the very least, the appearance of effective, nonpolitical justice is gone, as 10 of 11 members were nominated by Republican presidents, and the executive branch almost never loses.

The FISA court reviews domestic surveillance requests through a secretive process that denies the public an opportunity to influence or even understand opinions with immense implications for our privacy. In the domestic criminal context, the contours of Fourth Amendment limitations have been developed through a process in which advocates, officials and the public have a chance to identify flaws in the government’s reasoning. While domestic criminal warrants are issued after proceedings in which only the government is able to make its case, the legal principles governing the decision to issue these warrants come from judicial decisions regarding their admissibility — decisions issued after public proceedings where both sides have a chance to be heard. By contrast, in the FISA court context, drastic expansions in government surveillance can occur without any party other than the government having an opportunity to know, much less to weigh in.

This has to stop. I am already working on legislation to reform the FISA court so it can perform effectively its crucial function as a check on the executive branch, while still allowing light to shine upon its proceedings. My proposal, which I plan to introduce this month, will bring transparency to the process for selecting FISA court judges and ensure a broader diversity of views on the bench. It also will ensure that FISA court rulings are the product of a process in which both sides have the opportunity to be heard, a process designed to keep the government honest and allow for balanced consideration of difficult issues. This process will include a special advocate with the power and responsibility to ensure that privacy rights are considered in FISA court opinions, and an opportunity for civil society organizations to weigh in before the court issues a ruling that substantially alters the balance between liberty and security in federal policy.

The FISA court serves a critical purpose in our national security apparatus, ensuring timely consideration of surveillance requests when seconds matter most. But the court in its current form — unaccountable, secretive, one-sided — is broken. It not only lacks any genuine transparency and accountability, but it also deprives the entire system of trust and credibility in the eyes of the American people. The FISA court is exactly the type of secret tribunal that fanned the flames of revolution we celebrate each July 4. It’s time to change that.

Richard Blumenthal represents Connecticut in the U.S. Senate.

http://www.politico.com/story/2013/07/fisa-court-process-must-be-unveiled-94127.html