This was originally published by Just Security.
Authorization for the National Security Agency’s (NSA) now-halted program of collecting records of phone call details is slated to expire on March 15, unless renewed by Congress, prompting a flurry of legislation to revoke the authority for the program and prohibit other forms of surveillance. Along with the recent controversy over the surveillance of former Trump campaign official Carter Page, the upcoming reauthorization has prompted a re-examination of the role of amicus curiae in the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review (FISCR) (collectively the FISA courts).
The introduction of amici into the FISA courts’ process was a key improvement in the USA Freedom Act of 2015, seeking to inject civil liberties and privacy perspectives into the otherwise secret, ex parte operations of the courts. Several recent bills have proposed ways to strengthen and expand the 2015 law’s amicus provision, as have various commentators, including former FBI General Counsel Andrew Weissmann. The Safeguarding Americans’ Private Records Act (SAPRA), introduced by Sen. Ron Wyden (D-OR) and Rep. Zoe Lofgren (D-CA), is the most ambitious plan, both in terms of tightening surveillance standards and its proposals vis-à-vis amici. SAPRA would fundamentally restructure the amicus program by authorizing amici to “raise any issue with the Court at any time,” whether or not the courts requested such input, and ensuring amici access to every FISA court opinion, transcript, pleading, and other court documents. Given the extraordinary secrecy surrounding FISA applications and the potential standing issues raised by a roving amicus, these proposals are likely to run into strong headwinds.
The following outlines a series of proposals that would minimize these types of concerns, but still strengthen the role of amici. They are based on our analysis of the FISA court cases involving amici since the USA Freedom Act was passed. The analysis will be published by the NYU Annual Survey of American Law later this year.
Background
The 2015 USA Freedom Act authorizes the appointment of two types of amici. First, it requires the FISA courts to appoint an amicus in any case involving “novel or significant interpretation of the law,” unless the court issues a finding that it was not appropriate to do so. These amici would be drawn from a pool appointed by the courts, and have expertise in “privacy and civil liberties, intelligence collection, communications, technology, or any other area that may lend legal or technical expertise” to the courts. Second, the law makes explicit the inherent authority of the courts to appoint amici in any instance they deem appropriate. Since the law was enacted, the courts have named amici in at least 11 cases; decisions are publicly available for eight of these.
We analyzed this body of case law to assess the impact of the amicus provisions, with a particular focus on whether the amici were appointed in all cases that seemed to present novel or significant interpretations of law and whether the participation of amici contributed to protecting Americans’ privacy and civil liberties by constraining surveillance programs.
We found that in at least four cases, the FISC did not appoint amici, although it seemed to be required by the statute, including one case in which the government obtained permission to expand its authority to query communications collected warrantlessly under Section 702 of the FISA Amendments Act of 2008 for the calls and e-mails of particular Americans. These queries are commonly referred to as “backdoor searches,” which privacy and civil liberties advocates have long argued circumvent the Fourth Amendment’s warrant requirement. No amicus was appointed in any case involving an individual surveillance application, such as the Carter Page orders.
We also found that the ability of amici to convince the FISA courts to impose serious constraints on the NSA’s surveillance programs has so far been limited, and that the amicus pool itself is weighted towards former national security officials, creating the perception that the court is not receptive to civil liberties voices.
Nonetheless, the amicus provisions of the USA Freedom Act provide a starting point for Congress and the public to hold these institutions accountable. Moreover, the amicus experiment is still in its infancy, having operated for just under five years. Over time, the FISA courts may become more receptive to their participation and arguments.
A Need to Increase Amicus Participation
Congress should expand the amicus provision to include three additional circumstances that merit amicus appointment:
- When the NSA asks for FISA courts approval for the use of new technologies and new applications of existing technologies, as well as authorization of new programs. The NSA is almost certainly developing new surveillance programs and technologies that will impact Americans’ privacy and civil liberties. Under current law, the FISA courts might be tempted to treat these as applications of existing precedent, and therefore not subject to the amicus requirement.
- When the government requests reauthorization of its programmatic surveillance. FISC reviews of mass surveillance programs, such as the programs authorized under Section 702 and the recently discontinued Section 215 call records program, reveal repeated violations of rules crafted by the courts to ensure the constitutionality of the programs. Amici have contributed to assisting the FISC in addressing these issues. For example, in 2015, amicus Amy Jeffress argued that the FBI should be required to justify its searches of data collected without warrants under Section 702. While the FISC did not accept the recommendation, it required the FBI to report on its searches of this data. When the Bureau reported that its agents had searched the data for unauthorized purposes on several occasions, the FISC in 2018 (when Jeffress was again amicus, alongside two others) accepted her proposal. But no amicus was appointed for Section 702 reauthorization in the intervening years, despite a clear need. In 2016, no amicus participated in the reauthorization process in which the FISC found that NSA had for years flouted court-imposed rules designed to protect Americans’ privacy. Nor was an amicus appointed when the FISC once again reviewed the 2016 reauthorization application in April 2017 and allowed the government’s request to expand its backdoor search authority. Similarly, the reviews of the Section 215 call-detail records program are marked by repeated instances of the NSA’s failure to comply with court-imposed safeguards.
- When individual electronic surveillance applications under Title I of FISA involve political or religious activities. When the FISC was established in 1978 to review individual surveillance applications, many in Congress were concerned that the cover of foreign intelligence would be used to target political activities. While allegations that the surveillance of Carter Page was politically motivated have generated the most public attention, civil liberties groups have long been concerned that FISA was being used to target American Muslims for their political activities and religious beliefs. For example, in 2014, The Intercept reported that the FISC authorized the surveillance of five prominent American Muslim men – including a former senior policy advisor in the Department of Homeland Security under George W. Bush who had held a top-secret security clearance and the head of the largest American Muslim civil rights organization. The public record shows that the courts have not appointed amici in any case involving a FISA Title I order authorizing surveillance (David Kris, the former assistant attorney general for the National Security Division of the Department of Justice, was appointed as amicus to assist the court in evaluating the procedural changes proposed by the FBI to ensure that future surveillance requests will not have the same factual shortcomings as the Page applications). The USA Freedom Reauthorization Act of 2020 proposed by the House Judiciary Committee would mostly capture these critical Title I surveillance orders by requiring that an amicus be appointed in any case that presents “significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution,” unless the court finds such an appointment inappropriate.
Prioritize Privacy and Civil Liberties Interests
The original intent of the USA Freedom Act’s amicus reform was to provide the FISA courts with civil liberties and privacy perspectives to balance against the government’s national security arguments. However, the current amicus pool is weighted towards former high-level government lawyers and prosecutors, some of whom, like Kris, have been involved in defending and developing surveillance programs. A technical expert recently appointed to the pool previously served as a government witness in Wikimedia v. NSA, a case challenging the constitutionality of Section 702 collection. While amici with backgrounds working in the government on national security issues are certainly more than capable of making civil liberties arguments, their experience and relationships may predispose them to believe that all or most of FISA surveillance is constitutional. Their over-representation in the amicus pool and appointment in critical cases, such as the Section 702 reviews, heightens the perception that the FISA courts are uninterested or unwilling to hear privacy and civil liberties arguments.
Congress should ensure that these voices are heard by the FISA courts by requiring them to appoint at least one amicus with expertise in civil liberties in every case that meets the expanded standards outlined above. But the courts don’t need to wait for Congress to act – they can start expanding the amicus pool to include a greater diversity of experiences.
Expand the Amicus Role
Even when amici are tapped, their mandate can be limited by the scope of the questions posed by the appointing court. For example, when the FISC reviewed the government’s annual request for reauthorization for the Section 702 program in 2018, amici were specifically appointed to address two questions relating to “abouts” collection (the collection of communications that are not just to or from but “about” a target). The court did not solicit or evaluate amicus perspectives with regard to the multitude of other significant issues revealed in the course of the review, including the previously unknown FBI practice of conducting “batch queries,” which are searches of Section 702 data using multiple query terms at once, some of which may not meet the requirement of being reasonably likely to return foreign intelligence information.
Congress should clarify that, as already reflected in the USA Freedom Act statute, when amici are appointed, they may weigh in on any issue relevant to the case, not just on the issues identified by the court as requiring amicus involvement.
Amici also should be given the ability to bring issues to the attention of the FISCR. Such an avenue would have been important in the Section 702 authorizations in which amici were involved. In 2015, the FISC rejected Jeffress’ suggestion that the FBI be required to document its justifications for backdoor searches of Section 702 information. If she had been able to bring the issue to the FISCR, it might not have taken until 2018 to impose this sensible and relatively modest safeguard; by that time, the bureau had clearly abused this authority.
Amici’s inability to bring issues to the attention of the FISCR further disadvantages them vis-à-vis the government. In the wake of the 2018 Section 702 authorization in which the FISC required the FBI to follow statutory requirements for collecting information on its searches for Americans’ information and imposed the documentation requirement, the government appealed to the FISCR. But Jeffress and the other two amici had no obvious procedural mechanism for bringing critical issues – such as whether querying of Section 702 data requires its own Fourth Amendment analysis – to the attention of the FISCR.
Predecessor bills to the USA Freedom Act gave amici the ability to appeal adverse decisions from the FISC to the FISCR. These were stripped out of the final legislation, in part because of concerns that giving amici standing to appeal could violate Article III of the Constitution and separation-of-powers principles. But standing concerns should not preclude allowing amici to bring to the attention of the FISCR issues that they believe were wrongly decided. In cases where amici are appointed, the SAPRA legislation, for example, would enable them to refer matters for en banc review or to the FISCR as the court “considers appropriate,” and to refer FISCR decisions to the Supreme Court as the court “considers appropriate.” Allowing the courts to make the ultimate decision on “appropriateness” avoids the concern that amici are not parties to the case with standing to bring appeals.
Amici also need better access to information. For an amicus to make the best argument, she must have access to relevant information and documents. However, the USA Freedom Act left it to the FISA courts to determine what materials should be provided to an amicus. In at least one case, the 2015 Section 702 reauthorization, amicus Jeffress was not provided access to a set of FBI procedures from 2011, which limited her analysis.
Congress should ensure that amici have access to all materials that could impact their analyses by adopting a provision included in an earlier version of the USA Freedom Act – introduced by Senator Patrick Leahy (D-CT) and supported by 58 senators – mandating that amici “shall have access to all relevant legal precedent, and any application, certification, petition, motion, or such other materials as are relevant” to their duties.
Enhance Transparency
Since Snowden revealed details of the NSA’s massive surveillance operations in 2013 and the FISC’s approval of a program focused on Americans, the agency and the FISA courts have made significant progress on transparency. This is in part due to the USA Freedom Act’s requirement that the Director of National Intelligence (DNI), in consultation with the Attorney General, conduct declassification reviews of all FISA court rulings that include significant constructions or interpretations of law, unless the DNI deems the withholding of documents “necessary to protect the national security of the United States or properly classified intelligence sources or methods.”
However, there is no requirement for the declassification of amicus briefs, and briefs from only six of the eleven cases involving amici since 2015 have been declassified. Without these briefs, the public has to rely on the courts’ released rulings to get a glimpse of an amicus’ arguments, if they are referenced by the court at all. Congress should mandate declassification reviews of amicus briefs modeled on the existing declassification provision for decisions, including the requirement that if the DNI decides not to release a brief for national security reasons, an unclassified statement summarizing the amicus’ arguments must be published instead.
Moreover, the time between the issuance of a FISA court decision and its declassification can range from a day to more than 12 years, which hampers the public’s ability to understand and assess the court’s caseload and functioning. Congress should set deadlines for the declassification of decisions, opinions, and orders that include novel or significant interpretations or that meet any of the expanded categories of critical cases outlined above. For example, the USA Freedom Reauthorization Act of 2020 would require that declassification reviews be completed and court documents released – including from all proceedings involving an amicus appointment – no later than 180 days after issuance.
Information about the FISA courts’ activities is scattered in redacted court filings, FOIA releases, government transparency reports, and Privacy and Civil Liberties Oversight Board reviews. There is no official one-stop shop where the public can go to understand the full scope of the courts’ activities. Indeed, the best resource for accessing the FISA courts’ decisions, orders, and other materials is not the court’s own website or any government site, but a website organized by FISA amicus and Georgetown Law Professor Laura K. Donohue. The FISA courts, either on their own initiative or at the direction of Congress, should publish a complete docket (including any necessary redactions) listing their annual caseload and indicating when amici have been appointed.
Lastly, Congress should require transparency about the interactions between the FISA courts’ staff and the Department of Justice. Well before Snowden, there were concerns that the FISA courts acted as a rubber stamp for the government’s surveillance initiatives, with critics pointing to the fact that the courts rejected just 11 out of almost 34,000 government surveillance requests from 1979 to 2012. The courts’ defenders explained that these numbers do not reflect the revisions or withdrawals of applications urged by court staff upon review of DOJ’s draft versions of applications.
But this informal, undocumented revision and review system raises concerns that the FISA courts work with the DOJ to craft acceptable surveillance requests. The courts may view this process as a way to ensure greater civil liberties protections, but it also shields the government from precedent unfavorable to its position: we know what surveillance is permitted, but not what surveillance is not permitted. The modification rate has increased significantly since the passage of the USA Freedom Act in 2015, which may reflect greater vigilance by court staff, but also highlights the need for greater transparency about the back-and-forth between the court staff and the DOJ. Accordingly, as recommended by recent FISA legislation introduced by Rep. Chris Stewart (R-UT), Congress should mandate transparency by requiring the Attorney General to maintain records of all written or oral communications between the DOJ and the FISA courts. In addition, amici should be given access to the communications relevant to their assigned cases.
With the impending sunset of Section 215, it is past time to enact broad surveillance reforms (such as those set out in SAPRA) and expand the role of amici in FISA proceedings. Adopting these recommendations will position amici to make forceful civil liberties and privacy arguments in front of the courts, effecting change from within the FISA court system.