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FISA and the Constitution

Secret courts and secret rulings contradict not only the Constitution, but the principles that guide and shaped it.

Last Monday, the Electronic Privacy Information Center (EPIC) petitioned the Supreme Court of the United States to halt the NSA’s mass collection of telephony metadata. The full EPIC petition (PDF version) is worth reading even if only for the gravity of the request: writs of mandamus, which would allow the Supreme Court to intervene directly in an inferior court, are incredibly powerful and thus extremely rare.

Circumstances have dictated the necessity of the Supreme Court’s intervention. EPIC sums up the situation well:

In this case, the Foreign Intelligence Surveillance Court (“FISC”) exceeded its statutory jurisdiction and as a direct consequence created the exceptional circumstances that warrant mandamus review. The ongoing collection of the domestic telephone records of millions of Americans by the NSA, untethered to any particular investigation, is beyond the authority granted by Congress to the FISC under the FISA. Because of the structure of the FISA and the FISC, EPIC can only obtain relief from this Court.

That structure is the central problem. The Foreign Intelligence Surveillance Court lacks many of the trappings and protections of what Americans traditionally understand a court of law to be. Its proceedings are ex parte, non-adversarial, and sealed. With only the rarest of exceptions, rulings made and opinions written are not promulgated beyond the federal government and communications companies, nor are they published in public records.

Appellate review is possible, but only through the rarely-convened Court of Review. From there, no petition has ever reached the Supreme Court. FISC judges are all appointed by a single person — the Chief Justice of the United States — and, unlike presidential appointments to other federal courts, do not require Senate confirmation. Without scrutiny of its rulings or precedents from the public, from Congress, even from the higher courts, the FISC has “quietly become almost a parallel Supreme Court,” whose rulings have carved out exceptions to the Fourth Amendment itself and vastly expanded the government’s authority to surveil American citizens.

Only through congressionally-mandated annual statistics do we gain even a glimpse of the FISC’s workings, and they bring little comfort: of the 33,949 FISC requests made between 1979 and 2012, only 11 were denied. Proportionally speaking, if the federal government had submitted one warrant request for each person in an average NFL stadium during a game, the number of requests denied would only cover the players on the field.

Does the Constitution explicitly forbid the current FISA system? One could say it doesn't need to. Its repugnance to American law is self-evident from our history and our practice.

Some legal principles are so foundational to the American system of law and justice that they need not be codified. The Supreme Court describes the presumption of innocence in criminal trials as “the undoubted law, axiomatic and elementary,” even though the Constitution does not explicitly protect it. The phrase “right to privacy” cannot be found in the Bill of Rights’ text, but the justices have seen it logically spring forth from the penumbra cast by the First, Third, Fourth, Fifth, and Ninth Amendments.

Other metaconstitutional principles are derived from historical practice and the English legal system. American courts frequently invoke the Star Chamber, a notorious 15th-century English secret court, and its abuses when explaining the necessity of criminal law protections. The Supreme Court even noted in 1948 that the Star Chamber symbolizes “the traditional Anglo-American distrust for secret trials” as a “menace to liberty.”

And last month, Justice Antonin Scalia invoked pre-revolutionary British legal tools in his Maryland v. King dissent (PDF version), lashing out at the state of Maryland for keeping a DNA database of arrested suspects without probable cause:

At the time of the Founding, Americans despised the British use of so-called “general warrants”—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application. The first Virginia Constitution declared that “general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed,” or to search a person “whose offence is not particularly described and supported by evidence,” “are grievous and oppressive, and ought not be granted.”

Maryland claimed that the DNA swabs were only used narrowly (for identification purposes) and thus permissible. This, Scalia thundered, “taxes the credulity of the credulous.”

“Perhaps the construction of such a genetic panopticon is wise,” he wrote sarcastically. “But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Why shouldn’t our cell phones be held to the same standard?

The federal district courts are more than capable of handling foreign intelligence surveillance warrants. Ample protections already exist within the American legal system to seal records and to hold in camera hearings. If federal judges duly appointed by the President and confirmed by the Senate can be trusted with literally every other mechanism of our legal system, they can be trusted with this one too.

Nor can it be said that a workload for 11 judges would be too burdensome for the entire federal judiciary to handle. With 677 judicial seats in the federal district courts, the FBI will not want for a judge who can be woken at 3 AM to sign a warrant should necessity demand it. They might even find a few willing to challenge them once in a while. Most importantly, their decisions would be reviewable by higher courts.

Neither Congress nor the President can be expected to dismantle or substantively reform the FISA system, at least not while the charge of being “soft on terrorism” retains its electoral magic. Only the Supreme Court can decisively intervene to halt the FISC’s excesses now. If the highest court in the land is to maintain both its vital supremacy and the American system of justice, it must intervene.