Obama announces changes for FISA court

January 20, 2014

Washington D.C
By: Courtney Collins

On January 17, 2014, President Barack Obama made a speech outlining plans to take a critical look at the Foreign Intelligence Surveillance Court (FISC) and improve the court's transparency. He called on Congress to assist in the process of establishing a panel of advocates to work alongside the FISC as well as an annual review of the declassification of future opinions:

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And going forward, I’m directing the Director of National Intelligence, in consultation with the Attorney General, to annually review for the purposes of declassification any future opinions of the court with broad privacy implications, and to report to me and to Congress on these efforts. To ensure that the court hears a broader range of privacy perspectives, I am also calling on Congress to authorize the establishment of a panel of advocates from outside government to provide an independent voice in significant cases before the Foreign Intelligence Surveillance Court.

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The President also stated that changes were to be made to the collection of phone metadata, which FISC and Congress have approved in the past. Currently the collection of data includes any calls that are three or less steps away from a known terrorist number. The new rules would reduce this to two or less steps away. Until the database can be assessed, President Obama has ordered the information can only be accessed after a judicial finding or in the case of true emergency.

Finally, the President has expressed interest in working with Congress to improve the court moving forward:

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There are also those who would like to see different changes to the FISA Court than the ones I’ve proposed. On all these issues, I am open to working with Congress to ensure that we build a broad consensus for how to move forward, and I’m confident that we can shape an approach that meets our security needs while upholding the civil liberties of every American.

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Reaction to the speech

The reaction from current and former members of the Foreign Intelligence Surveillance Court to the speech was unanimously negative. John Bates, current United States District Court for the District of Columbia judge and former FISC presiding judge, wrote a letter to select members of the Senate Judiciary Committee in which he sharply criticized President Barack Obama and his plans for the FISC. Bates states in his letter that the proposed changes will greatly increase the FISC's work load, which in turn would require more funding for the court. He also addressed the plan to add a panel of advocates:

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The participation of a privacy advocate is unnecessary and could prove counterproductive in the vast majority of FISA (Foreign Intelligence Surveillance Act) matters, which involve the application of a probably cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specific target. Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct and independent investigation. Advocate involvement in run-of-the-mill FISA matters would substantially hamper the work of the Courts without providing any commensurate benefit in terms of privacy protection or otherwise; indeed, such pervasive participation could actually undermine the Courts' ability to receive complete and accurate information on the matters before them.

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Another former FISC judge, Roger Vinson voiced similar concerns about the idea of an appointment of an advocate and the possibility of slowing down the court's proceedings. Vinson's thoughts differ from Bates' and the current FISC court in that he doesn't believe the court would be overwhelmed by the higher caseload.

See also

• United States Foreign Intelligence Surveillance Court