"The executive is not an effective check on the executive," Judge Rosemary Collyer of the D.C. District Court said on Friday. The topic before her was drones, not National Security Agency spying, but the point echoes across the government's anti-terror activities. In an opinion piece in The New York Times today, another judge, who once sat on the secret court that signs off on the NSA's activity, makes a similar point. That court needs a new system. The executive branch is not an effective check on the executive branch.
Since it began its review of the NSA's efforts to gather telephone metadata and Internet content, the Foreign Intelligence Surveillance Court has only heard from attorneys representing one point of view. Justice Department lawyers — members of the executive branch — make the case for why a warrant to collect the information is important; the court decides if it agrees or not. As has been widely reported, it almost always agrees to allow the warrant.
But in his Times piece, James Carr, who sat on the FISC from 2002 to 2008, suggests that the popular understanding of why the court usually OKs the activity is incorrect. "The low FISA standard of probable cause — not spinelessness or excessive deference to the government — explains why the court has so often granted the Justice Department's requests," he writes. And it's hard for the court to keep up with how those requests evolve.
During my six years on the court, there were several occasions when I and other judges faced issues none of us had encountered before. A staff of experienced lawyers assists the court, but their help was not always enough given the complexity of the issues. …
[R]apid advances in technology have outpaced the amendments to FISA, even the most recent ones, in 2008.
What Carr proposes echoes a proposal from another former FISC judge: give the public a voice to counter the government's proposals. Carr proposes an attorney, who would be given clearance to argue on the topics at hand, from a default position that probable cause for a warrant hasn't been met. That attorney, Carr suggests, could have the sort of ongoing knowledge of the technology and evolving privacy considerations at stake to give the FISC judges a more complex understanding of the decisions it makes.