"We are overseen by everybody," NSA Chief Keith Alexander lamented last year, reiterating, as he likes to do, that the agency's surveillance is subservient to all three branches of government. Congress passes the laws, the judiciary evaluates them, and the executive branch implements them.
Except that Congress is generally kept in the dark on details. And except that courts have been stymied in assessing the constitutionality of the behavior behavior. Both thanks to the stinginess of Barack Obama's executive branch that runs the show. Now, thanks to whistleblower Edward Snowden, that's shifting.
Last week, we outlined the new, relatively modest push for reform in the legislative branch. Much of that reform centers on the role of the Foreign Intelligence Surveillance Act Court, which is singularly responsible for assessing and approving the government's requests for authorization to conduct surveillance activity. The government presents its case, no counterargument is heard, and almost always the request is approved.
Monday morning, Senator Richard Blumenthal of Connecticut made his case for reform public in an opinion piece for Politico. Blumenthal focuses on legislative reforms to the role of the FISA Court and its nearly universal acquiescence. "This has to stop," he writes.
The FISA court serves a critical purpose in our national security apparatus, ensuring timely consideration of surveillance requests when seconds matter most. But the court in its current form—unaccountable, secretive, one-sided—is broken.
The FISA Court was established by Congress specifically to play that oversight role, but its secrecy means that its nearly impossible to evaluate its actual oversight. And it makes the reform efforts proposed so far, including the one supported by Blumenthal, incomplete. The Electronic Frontier Foundation detailed the challenges in a blog post Monday. "Unfortunately," EFF writes, "legislators are trying to edit the statutory text before a thorough understanding of how the government is using key definitions in the bill or how the FISA Court is interpreting the statute." Such as how the court defines "relevant."