America's Secret Courtroom

By Alana Mattei
Alana Mattei is a junior at the University of Pennsylvania studying Philosophy, Politics, and Economics (PPE).

To many Americans, the notion of a secret court, closed to the public, giving a government permission to surveil its own citizens seems like something straight out of a spy novel.  In reality, a court exactly like this exists in Washington D.C.

The United States Foreign Intelligence Surveillance Court hides behind inconspicuous concrete walls, a biometric scanner, and an electric cipher lock in the E. Barrett Prettyman Federal Courthouse in downtown D.C. [1]   The existence of the court is public, but what goes on behind its heavily protected doors is not.  Few American citizens know it exists and fewer understand what it actually does.

Established in 1978 by the Foreign Intelligence Surveillance Act (FISA), the court was a “response to President Richard Nixon’s misuse of federal resources to investigate U.S. citizens.” [2]  Because FISA applies only to foreign powers and agents of those powers, it isn’t originally intended to target U.S. citizens.  There are, however, notable exceptions that would allow it to do so. FISA warrants can be used to wiretap citizens abroad and those suspected of acting on behalf of a foreign power. [3]

This classified court’s operations differ greatly from that of a typical U.S. criminal court – it’s not responsible to the same safeguards of individual liberties.  To obtain a warrant for electronic surveillance from the FISA Court, for example, officials don’t need probable cause that a crime has occurred. The only required evidence is that the target of the warrant is either a foreign power or acting on the behalf of one. [4] The court is also closed to the public.  There is no jury present and proceedings are conducted ex parte – the only party present is the government, not the accused. [5]

The FISA court finds itself in the spotlight recently due to controversy over the 2016 presidential election.  In 2017, it was revealed that the FBI had obtained a warrant to monitor the communications of Carter Page, one of Trump’s foreign policy advisors, in an investigation of alleged relations between Donald Trump’s campaign and Russia.  One of the above-mentioned loopholes under FISA gives the court ability to authorize surveillance of Page despite his status as a U.S. citizen. Page’s warrant was requested because of suspicion that he was colluding with Russian officials with intent to sway the 2016 election.  In a court document released to the public, the FBI argued that they not only worried Page “might have been conspiring with the Russians, it wrote that it believed he was a full-blown Russian agent.” [6]

President Trump is obviously not pleased with the ongoing investigation into his campaign.  He’s accused the Department of Justice of misleading the FISA court in pursuit of political goals. [7] Though it remains to be seen whether Trump’s accusations are misplaced, they present an interesting point.  How can we rest assured that the FISA court is insulated from being utilized as a means to a political end? The fact that the court is shrouded in secrecy makes having checks on it more difficult, but not impossible.  There is an appeals process in place when requests for surveillance are denied that reaches all the way to the Supreme Court. Even so, the person being investigated can never request an appeal – they don’t even know it’s happening. [8]

The court could be seen as being as much of a threat to due process and the right to privacy as it is a safeguard of national security.  It’s come under fire for authorizing most of the surveillance the government asks it to, though in reality some applications for warrants are rejected.  The court has evolved over the years to allow an increasing amount of surveillance. After the attacks of 9/11, the court began “authorizing more sweeping collections of mass data.” [9] The court’s power extends so far as to allow authorization of a company’s entire database of phone records if deemed necessary for counterterrorist protections.  
An element of the FISA Court process that remains unsettling is the one-sidedness of its procedures.  When the government seeks a FISA warrant, there is no one on the other side to present an argument against the warrant.  A simple solution to this could exist in the form of a government attorney tasked with arguing against the requested warrant for surveillance each time a case comes before the court.  This might ease the fear in people’s minds that the court exists solely to authorize any surveillance the executive branch requests.

Initially, the idea of this court operating in the U.S. might be alarming to Americans.  It’s easy to see, however, that while the court does authorize intelligence officials to “spy” on American citizens, it also exists as a judicial check on the powers of these executive agencies.  Without the need for FISA Court approvals, the NSA and other similar agencies would be free to conduct investigations that don’t meet the standards of the court. Though there is need for some reform, the court serves its purpose of providing necessary judicial oversight for the executive branch’s foreign surveillance activities, especially when those activities involve American citizens.

References:  
[1] Shapira, Ian. "Biometric Hand Scans and Reinforced Concrete: The History of the Secret FISA Court." The Washington Post. February 09, 2018. Accessed November 01, 2018. https://www.washingtonpost.com/news/retropolis/wp/2018/02/09/biometric-hand-scans-and-reinforced-concrete-the-history-of-the-secret-fisa-court/?utm_term=.0a4ba4db074c.
[2] Wallace, Lacey. "3 Questions about the FISA Court Answered." The Conversation. September 19, 2018. Accessed November 01, 2018. https://theconversation.com/3-questions-about-the-fisa-court-answered-91208.
[3] Wallace, Lacey. "3 Questions about the FISA Court Answered." The Conversation. September 19, 2018. Accessed November 01, 2018. https://theconversation.com/3-questions-about-the-fisa-court-answered-91208.
[4] "The Foreign Intelligence Surveillance Act of 1978." The Foreign Intelligence Surveillance Act of 1978. Accessed November 01, 2018. https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1286.
[5] "The Foreign Intelligence Surveillance Act of 1978." The Foreign Intelligence Surveillance Act of 1978. Accessed November 01, 2018. https://it.ojp.gov/PrivacyLiberty/authorities/statutes/1286.
[6] Ewing, Philip. "What You Need To Know About The Much-Discussed Carter Page FISA Document." NPR. July 23, 2018. Accessed November 01, 2018. https://www.npr.org/2018/07/23/631343524/what-you-need-to-know-about-the-much-discussed-carter-page-fisa-document.
[7] Ewing, Philip. "What You Need To Know About The Much-Discussed Carter Page FISA Document." NPR. July 23, 2018. Accessed November 01, 2018. https://www.npr.org/2018/07/23/631343524/what-you-need-to-know-about-the-much-discussed-carter-page-fisa-document.
[8] Wallace, Lacey. "3 Questions about the FISA Court Answered." The Conversation. September 19, 2018. Accessed November 01, 2018. https://theconversation.com/3-questions-about-the-fisa-court-answered-91208.
[9] Yan, Holly. "What Is the FISA Court, and Why Is It so Secretive?" CNN. April 12, 2017. Accessed November 01, 2018. https://www.cnn.com/2017/04/12/politics/fisa-court-explainer-trnd/index.html.
Photo Credit: Unsplash: Nathaniel Dahan https://unsplash.com/photos/z1uDmJx3ZEQ

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