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FISA: Senator Murray Co-Sponsors Major Legislation To Reform FISA Courts

Aug 01 2013

Legislation Would Provide Badly Needed Check on Government Surveillance Proceeding that is Currently Lacking

(Washington, D.C.) Today, U.S. Senator Patty Murray announced the she will co-sponsor the FISA Court Reform Act of 2013 which was introduced in the U.S. Senate today. The bill 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.

Recent revelations have shed new light on the size and scope of the nation’s foreign surveillance activities and the ability of the FISA courts – to provide effective oversight of these operations. For example, in its 33-year history, the FISA courts have rejected just 11 out of nearly 34,000 surveillance requests made by the federal government, which raises questions about whether they provide a meaningful check and balance on government surveillance. The bill Senator Murray is co-sponsoring would reform the FISA courts to ensure they serve this crucial check-and-balance function.

“I’m committed to working for a better balance between protecting our national security and protecting American’s civil liberties,” said Senator Murray. “I’ve long been concerned that the FISA Courts, which operate in secrecy and with few checks on their sweeping power, would benefit from the adversarial process that exists in other courts. This bill will protect privacy and individual liberties without impeding the court’s work to safeguard our nation.”

The FISA Court Reform Act of 2013 would ensure that the FISA courts could only issue significant interpretations of law after arguments for and against any expansion of government surveillance are heard and considered. Over the last three decades, the FISA courts’ case law (i.e. decisions, precedents) has evolved through a non-adversarial, “ex-parte” process in which the government’s interpretation of the facts and law, including its statutory powers, is the only view heard on national security issues brought before the FISA courts. Although in ordinary criminal proceedings surveillance authorizations or search warrants are issued after a similar ex parte process, the legal principles governing this process come from judicial decisions regarding their admissibility or other issues – decisions issued after arguments for and against the issue before the court were heard and considered. The process of the FISA courts is not guided by such principles. In fact, the FISA courts can drastically expand government surveillance without any party other than the government having an opportunity to know or weigh in. The bill would change this. Specifically, the bill would:

  • Create an Office of the Special Advocate (OSA) tasked with advocating in the FISA courts’ closed proceedings for legal interpretations that minimize the scope of intrusion into our privacy. The OSA will have the authority to appeal decisions of the FISA courts, and would be staffed by attorneys who are properly cleared to view the classified information considered by the FISA courts and bound by the same confidentiality requirements as the courts’ staff and government officials.

  • Allow interested parties to participate as amici, in cases involving significant or novel issues of law, most of which will be considered before the Foreign Surveillance Court of Review. Proceedings of the FISA courts would remain secret to protect national security, but the FISA courts would have the advantage of the insights and advocacy of outside experts and organizations.

  • Require the Attorney General to disclose past and future significant legal interpretations of the FISA courts and empower the OSA to petition the FISA courts for expanded or modified disclosures that are consistent with valid national security concerns.

The FISA Court Reform Act of 2013 was introduced by Senator Richard Blumenthal (D-CT) and is co-sponsored Senators Murray (D-Wash.), Coons (D-Del.), Franken (D-Minn.), Gillibrand (N.Y.), Merkley (D-Ore.), Tester (D-Mont.), M. Udall (D-Col.), T. Udall (D-N.M.), Whitehouse (D-R.I.), Wyden (D-Ore.), Baldwin (D-Wis.), and Markey (D-Mass.).