This editorial will appear in Monday’s print edition.
The Obama administration is reportedly exploring ways to declassify some documents related to the controversial, secret FISA court.
That’s a welcome move, one that should cast light on the little-known work of the FISA judges charged with oversight responsibilities under the Foreign Intelligence Surveillance Act (FISA).
The best outcome of declassifying the documents would be to help demystify the court, which was created by Congress in 1978 as a reaction to unauthorized domestic spying by the government in the 1960s and ’70s. Under FISA, a judge must approve a warrant for the government to conduct surveillance, even if it involves a foreign threat to national security.
The court has come under intense scrutiny since the leaks of classified documents by Edward Snowden, a former National Security Agency contractor. (Facing arrest, Snowden took flight into the arms of those well-known civil liberty champions, China and Russia. Did North Korea turn him down?)
Critics point to the fact that in 2012, the court considered 1,788 requests for electronic surveillance — and approved all of them. But that’s not the entire story. According to the report it is required to submit to Congress, some approvals were granted only after the judges required that they be scaled back or revised in some way.
And contrary to some conspiracy theorists, the court isn’t packed with Obama appointees eager to do the president’s bidding behind a veil of secrecy.
In fact, according to The Washington Post, all 11 current FISA members were appointed by Supreme Court Chief Justice John Roberts Jr., a George W. Bush nominee. Ten of those 11 were originally appointed to the federal bench by Republican presidents.
The FISA court’s current chief, U.S. District Court Judge Reggie Walton, said: “The perception that the court is a rubber stamp is absolutely false.” And Deputy Attorney General James Cole noted that the judges “push back a lot . . . when they see anything that raises an issue, they will push back and say, ‘We need more information.’”
If the court isn’t working as Congress intended and providing insufficient oversight of government surveillance, lawmakers can make adjustments legislatively. They are, after all, the ones providing oversight of the overseers and receiving reports from the court on its activities.
In the meantime, releasing more information and providing greater public access to the workings of the court would be the right thing to do.