Blumenthal Delivers Major Policy Address At Harvard Law School On Legislation To Reform FISA Courts

Blumenthal’s Legislation Would Strengthen Privacy Protection In The FISA Court System, And Change The Way Its Judges Are Appointed

(Boston, MA) – Today, U.S. Senator Richard Blumenthal (D-Conn.) delivered a major policy address at Harvard Law School on legislation he’s proposed to reform the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review – collectively, the FISA courts. The first bill – the FISA Court Reform Act of 2013 – would create a Special Advocate with the power to argue in the FISA courts on behalf of the right to privacy and other individual rights of the American people. The second bill – the FISA Judge Selection Reform Act of 2013 – would reform how judges are appointed to the FISA courts to ensure they are geographically and ideologically diverse and better reflect the full diversity of perspectives on questions of national security, privacy, and liberty. Text of the address as prepared for delivery is attached and below:

 Introduction

 Thank you so much for inviting me to join you today. I want to thank Professor Coates for that gracious introduction. I’d also like to thank Dean Minow and the Law School for inviting me to speak today.

 As Justice Louis Brandeis wrote, the Fourth Amendment “conferred as against the government, the right to be left alone – the most comprehensive of rights and the right most valued by civilized man.” The right to privacy today is intertwined with government surveillance in the War on Terror, causing many Americans to worry that their rights are being eroded in the name of security. Just today, we saw an article in the New York Times noting that the NSA has been defining its authority to—quote—“target” individuals overseas as allowing it to essentially do keyword searches of any email that crosses America’s borders. Once again, the American people are learning that the federal government believes the law allows surveillance far beyond what we might have expected. And once again, the main check on government surveillance comes from secret courts and secret law.

From the outset today, I want to make clear that the critical work of intelligence and counterterrorism is of paramount importance to our nation. It demands and deserves the respect and trust and credibility of the American people. My proposal—and the purpose of this speech today—is to address the concerns that so many have expressed about the government’s current surveillance regime. Mine is a set of solution focused on the practices and procedures that government must use before it can collect data from or conduct surveillance on Americans. They are solution that protect and defend the Constitution, ensure ideological and geographic diversity on the FISA courts, and incorporate an adversarial process where today there is none – providing for a special advocate whose client will be the Constitution.

These are straightforward, rather simple, but still ambitious, changes that would revamp a decades-old process and courts that in recent years have run astray of American judicial expectations.

“The Right to Privacy”

My proposal is simple and straightforward, but it is grounded in a long and complicated history—the history of an ideal, the right to privacy, being adapted and updated in the face of changing conditions. In one sense, that history began here, at Harvard Law School.

In 1890, two of the law school’s brightest alumni—Samuel Warren and Louis Brandeis partnered to write an article for the Harvard Law Review. They called the article “The Right to Privacy,” and in it they traced the legal underpinnings of that right. Like good lawyers, they grounded their analysis in precedent, claiming that the right they were expounding was “as old as the common law.” But they also acknowledged that their article was designed to prompt something new. While the right to privacy is old, they wrote, “it has been found necessary from time to time to define anew the exact nature and extent of such protection.”      

The article’s authors were particularly concerned about the rise of new technologies with vast potential to invade Americans’ privacy. They had in mind such new devices as the “instantaneous photograph,” a device they feared would allow unscrupulous individuals to take “what is whispered in the closet” and “proclaim[ it] from the housetops.” The development of these technologies—they argued—required a fresh look at the protections secured by the right to privacy.

Since 1890, the right to privacy has indeed evolved with the times. In 1965, the Supreme Court recognized that privacy entails the ability to make the most personal decisions—like the decision to bear or not bear a child—without undue government interference. In 1973, it held those personal decisions include the decision to end an unwanted pregnancy. The Court has held that government may not use infrared technology to watch Americans walk around their homes, nor may it use GPS technology to watch Americans drive around their towns. Over the decades and the generations, the courts and culture of the United States have enshrined a right to privacy resilient enough to last and flexible enough to adapt to new conditions.

FISA History        

By 1978, government had access to technologies far more sophisticated than the “instantaneous photograph.” That was the year Congress passed the Foreign Intelligence Surveillance Act, which was designed to impose rules and procedures on what had been a largely lawless intelligence apparatus. 

The Congress that passed FISA had seen what could happen when surveillance was not controlled by effective legal constraints. The 1975 Church Committee hearings and report had revealed that for years the CIA was secretly opening and reading Americans’ mail. Americans targeted for harassment experienced even worse violations. As part of its campaign to discredit Martin Luther King Jr., the FBI planted microphones in his hotel rooms and sent the tapes to his wife in an effort to break up their marriage. Individuals targeted for special surveillance included opponents of the Vietnam War, journalists, a Congressional staffer and even a United States Congressman.

The FISA statute was modeled on what practitioners refer to simply as “Title III”—the statute that governs surveillance conducted as part of a domestic criminal investigation. It allowed for surveillance when the government could show probable cause that an individual or organization was a “foreign power” or “agent of a foreign power,” with those terms defined to include individuals engaged in international terrorism. When the government felt it had probable cause, it asked the FISA court for an individual warrant authorizing surveillance. If the government wanted to expand its surveillance or look at a different target, it asked for a new warrant.

The FISA statute differed from Title III in two important ways. First, in the Title III context the target of government surveillance would generally expect to know that he had been targeted. He would therefore have a chance to challenge the surveillance conducted against him, either in the context of a government effort to introduce evidence produced by the surveillance or as part of a civil suit. By contrast, the target of FISA-authorized surveillance will probably never learn he was targeted.

As a result, the case law governing Title III emerges through a very different process than the case law governing FISA surveillance. Title III case law is shaped by judicial decisions that result from an adversarial process. If a judge determines that a particular warrant was legal, they do so only after hearing a lawyer argue vigorously that the warrant was illegal. Their determination is then subject to appeal by a criminal defendant or civil plaintiff who can argue they got the law wrong.

Under FISA, there is no such adversarial process. The ex parte hearing in which FISA warrants are issued is generally the last time any court will consider the warrants’ validity. As a result, all of the decisions governing the scope of what FISA allows emerge from a process in which the court hears only the government’s interpretation of the law and the Constitution.

Furthermore, Title III’s case law is generally public. If the courts, over time, interpret the law to allow for greater interference with individual liberty than the American people can accept, the American people can do something about it. FISA case law, on the other hand, is almost entirely secret. Not only can Americans not learn the facts of a particular government surveillance request—which seems reasonable—they cannot learn the legal standard that courts use to determine whether a government request is permissible. In theory, certain Members of Congress may know how the FISA courts interpret the law, but they cannot reveal that information to the public. The result is that the government knows it can push as aggressively as it wants to expand surveillance without experiencing a public backlash. Two of my colleagues—Senators Mark Udall and Ron Wyden—have been complaining about FISA court interpretations of the PATRIOT Act for years, but until the recent leaks regarding of surveillance practices and procedures, their efforts were unavailing. Until the public became aware of the actions being taken in their name, nothing could be done to rein those actions in.

The other major difference between Title III and FISA relates to the judges designated to make decisions regarding surveillance. Almost any federal judge in the country could wind up deciding a Title III case. As a result, Title III’s case law reflects the broad range of views held by nearly 700 district court judges, more than 150 circuit court judges, and the members of the Supreme Court. By contrast, FISA cases are heard only by the FISA courts.

Unlike any other court in the country, the FISA courts are populated entirely by judges selected by the Chief Justice of the United States. Today, that means they have all been appointed by John Roberts. As a result, ten of the eleven members of the FISA court were appointed by Republican presidents, and half served in the Executive Branch before their appointment to the bench. Such a situation may not lead to bias. I served in the Justice Department before joining the Senate, and I clerked for two Republican-appointed judges who have as much compassion for criminal defendants as any Democrat. But the issue we are grappling with is one of perception and the very essence of impartial justice. A court that appears not to reflect a diversity of viewpoints inevitably gives rise to the appearance of bias. Just as the lack of an adversarial process appears to stack the deck against civil liberties in the FISA courts, the lack of diversity undermines Americans’ ability to trust that these courts are truly fair and impartial.

FISA Modernization

If the 20th century FISA statute created a risk that government surveillance would expand beyond appropriate boundaries, 21st century amendments to the statute have dramatically increased that risk. In the wake of the September 11 attacks, President George W. Bush authorized the NSA to conduct warrantless interceptions of phone and email communications when one party was outside the United States and believed to be an al Qaeda member. The FISA court subsequently narrowed the scope of permissible surveillance, but a legislative push to bolster our intelligence capabilities was born.

In the USA PATRIOT Act, Congress allowed the government to collect “tangible things” that are “relevant to an authorized investigation.” Then in the 2008 FISA Amendments Act, Congress tasked the FISA courts with authorizing programmatic surveillance. No longer would the government be limited to requesting individual warrants after showing probable cause to believe that a particular person or organization was the agent of a foreign power. Instead, the government could outline a broad surveillance program and receive FISA court authorization.

Under the new regime, FISA courts are asked to play the role of lawmaker. Of course, every court in some sense makes law. Everybody in this room knows that “it is emphatically the province and duty of the judicial department to say what the law is.” And anybody who has even a passing familiarity with statutes knows that saying “what the law is” always involves an act of interpretation. FISA courts—which are tasked with interpreting a complicated statutes in light of evolving Constitutional requirements and national security concerns—face one of the most complicated interpretive exercises there is. Like it or not, they must decide whether the law allows an action. Whatever they decide, that is the law.

But the 21st century amendments to FISA make the FISA courts lawmakers in an even deeper sense. Under those amendments, the courts consider extensive surveillance plans. They then decide whether FISA’s broad language authorizes these programs and whether the Constitution allows them. The size and focus of America’s surveillance state are, to a significant extent, in their hands.

Recent Revelations

And that brings us to today—a time when new revelations about the size and scope of surveillance and intelligence gathering are surprising Americans.  The men and women I hear from are shocked to learn what was being done in their name, especially the government’s use of section 215 of the PATRIOT ACT to collect phone records for millions of Americans.

As I see it, there are three potential reasons to be concerned about the metadata collection program, and each suggests a different set of reforms for the FISA system.

First, there is the substantive concern. Many of my colleagues believe that when it collected the records of millions of Americans, the federal government simply went too far. The Constitutional justification for this action, which is based on a 1979 case, Smith v. Maryland, in which the government collected a single American’s record, strikes many of us as suspect. But even if the federal government can collect these records, many of us question the wisdom and necessity of such an action. The Church Committee report that led to FISA provides example after example of the potential for abuse when government has access to large amounts of personal data.

The substantive concern comes with a substantive solution. Senator Leahy, chairman of the Judiciary Committee, has introduced legislation that would narrow the scope of the PATRIOT Act to limit the vast collection of metadata we now know is occurring. I have cosponsored this legislation, which I think takes a sensible approach to a difficult issue.

The second concern about the metadata program relates to transparency. The PATRIOT Act authorizes the collection of records that are—quote—“relevant to an authorized investigation.” Most Americans would be surprised to learn that millions of records fit that description. Even Rep. James Sensenbrenner, the House Republican who wrote the PATRIOT Act, has said he did not believe that legislation authorizes data collection as broad as what has been revealed. Needless to say, if the very people who write our public laws cannot know what they authorize, there is a problem of democratic accountability. The existence of secret law makes it less likely that the laws on the books will reflect the will of the people.

The transparency concern comes with its own set of solutions. My colleague Jeff Merkley has proposed revealing redacted versions of the FISA courts’ legal opinions. And Senator Al Franken has proposed allowing for the release of aggregate statistics on the extent of different forms of surveillance. I have cosponsored both of these bills, which would go a long way toward ensuring the American people know the rules that govern their government.

Finally, metadata collection—like other surveillance programs that have recently come to light—raises procedural concerns. Americans have strong and disparate views on difficult questions of law and policy. Yet when we feel that there is a fair system for adjudicating competing values, we are generally willing to accept the outcomes of legal and policy debates. Whatever our views on the right level of surveillance—or even the degree of secrecy that should surround surveillance programs—we might be comfortable with an extensive surveillance program if we could trust that it was approved by a fair arbiter after a fair process.

This attention to process makes good sense. Few Americans would say that no surveillance should be permitted, and not even an expert can know in advance the maximum number of records that should be collected or the maximum number of wiretaps that should be allowed. We have a general sense—embedded in our Constitutional rules—that the government should be able to engage in surveillance when it has a certain amount of evidence to justify such an action. But the devil is in the details, and we trust courts to sort out those details. The American people and their elected representatives don’t have the ability or the desire to tell the courts what to do in every imaginable situation. We focus on developing a system that we can trust to evaluate particular situations as they emerge. It is the best we can do. And if we do it right, it is enough.

A good process also provides a bulwark against abuse. One of the concerns that springs naturally from the realization that government has violated our privacy is the concern that they might go one step further. The pre-FISA FBI’s ability to wiretap Martin Luther King raised concerns that they might use that information to harass and coerce Dr. King, and in fact they did. If the FBI had been constrained by the courts, even if the courts had allowed wiretapping, they might have prevented the abuse of the information collected. Similarly, a court designed to effectively control the NSA’s metadata collection program is more likely to stamp out abuses in that program, even if it allows the program to continue.

FISA Court Reform Act

The process concern is what led to my proposals to reform the FISA courts. These proposals are included in two pieces of legislation I introduced last week, with support from  a number of my Senate colleagues. The first bill is called the FISA Court Reform Act. This legislation would create a Special Advocate empowered to argue in the FISA courts against efforts by the Executive Branch to expand the reach of government surveillance. The Special Advocate’s client will be the Constitution and the individual rights of the American people. What we have learned over the course of American history is that the Constitution needs a zealous advocate. My legislation would provide one.

I can talk more about the details of my proposal in the Q&A, but a few key points are worth highlighting. First, the Special Advocate will play an important role in addressing the “transparency problem” I mentioned earlier. Congress can and should require the Attorney General to release important legal opinions issued by the FISA courts. But even a Congressional directive may not be enough. The Obama Administration said in 2009 that it would begin redacting and releasing important legal opinions, and the public has yet to see a single opinion as the result of that effort. Transparency—like good law—is best achieved through an adversarial process.

A transparency requirement without an adversarial process runs the risk of producing a Catch 22. When the Attorney General claims that he is not obligated to release an opinion, nobody has the ability to object. The public cannot argue that the opinion should be released until it has seen the opinion, and it cannot see the opinion until it has been released. Certain members of Congress might argue that an opinion should be released, but these members will be barred from making their case to the American people. As I mentioned earlier, my friends Mark Udall and Ron Wyden have been sounding the alarm about FISA surveillance for years, but until the scope of FISA programs was made public this year they simply could not get any traction. Congressional oversight is simply no substitute for a process that allows the American people to see their government in action to the extent possible.

The second thing to understand about my proposal is that it will not delay the issuance of FISA warrants. Under my bill, the Special Advocate is empowered to require a warrant to be reviewed by the FISA system’s appellate court—the Court of Review. She can intervene at the trial court level only if she is asked to do so, and she cannot force a judge to wait before issuing a warrant. The goal of my legislation is to ensure that FISA doctrine evolves through an adversarial process, not to impose additional procedural requirements before surveillance can take place.

Finally, the Special Advocate will not undermine the security of the FISA court system. Under my bill, the Special Advocate can require the Court of Review to allow for an amicus process. To make this possible, the Court of Review will release redacted opinions or other materials so that the public can understand the implications when core legal requirements are altered. But the FISA courts will remain secure, with arguments occurring between advocates who have appropriate security clearances and face appropriate privacy requirements.

FISA Judge Selection Reform Act         

It could be argued, of course, that even the best adversarial process will not work if the judges who administer it are biased—or even if they are perceived to be biased. As I discussed earlier, the current makeup of the FISA court gives rise to the perception of bias. And when the court has turned down just 11 of the roughly 34,000 government requests presented to it, the public has the right to ask whether the deck is stacked against civil liberties.

To address the appearance of bias on the FISA courts, I have introduced additional legislation: the FISA Judge Selection Reform Act. This legislation lets the chief judge of each judicial circuit nominate FISA court judges, subject to approval by the Chief Justice of the United States. And it makes the Chief Justice’s selections for the FISA Court of Review subject to the approval of five associate justices, ensuring that the judges on this crucial court reflect the broad mainstream of judicial opinion. My proposal is designed to achieve greater diversity on the FISA courts without undermining their independence from political pressures or from the President.

Politically Possible

The proposals I have described are ambitious. They work a systemic change to one of the central institutions in America’s effort to defend itself. So let me close by addressing a question I get often—is this politically possible?

I think it is. I have focused on procedural reforms because I believe they provide the potential for common ground. If the President and others believe that every position taken by the Executive Branch is well within the requirements of the law, they should be willing to see their opinion tested in an adversarial process and ruled on by a diverse set of judges.

One of my proposals simply requires that when important issues of Constitutional law are decided, both sides are heard. What could be more American than that?

The other proposal allows for FISA court judges that are diverse in terms of both their geography and their viewpoint. What could be more fair?

When information on the scope of federal surveillance efforts began to come out, President Obama said that the American people needed to have a debate about the balance between liberty and security in a free society. He was right.

But that conversation can never be completed once and for all. As Warren and Brandeis pointed out in 1890—it will from time to time be necessary to redefine the contours of our freedom in light of new conditions. No single group of Americans can produce a solution destined to last for the ages. What we can do, however—what we must do—is design a set of institutions that we can trust to apply timeless principles to the situation we face at a given moment in our history. The FISA courts as presently constructed do not meet that test. It is time to build courts that do.