Published by The Lawfare Institute
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Published by The Lawfare Institute
In her post from earlier today responding to yesterday's government disclosures, Carrie writes that "I hope it is clear that the critics of surveillance activities only see transparency as the first step in a longer fight. The strategy is a one-two punch. The first punch is transparency. The second is to scale back or eliminate our national security surveillance capabilities altogether." I guess Carrie took nothing away from our prior exchange... Yes, some critics of surveillance activities want to "scale back or eliminate our national security surveillance capabilities altogether." But there are plenty of others, myself included, who have been arguing all along that the end game here is not handicapping our intelligence agencies, but reforming the process so that we can all have more faith that what they're doing is actually legal. In that regard, I'm quite surprised that Carrie thinks yesterday's disclosures establish that "the debate over whether the FISA Court is an effective check on government surveillance activities is over." Given the language of footnote 14 of the FISA Court's October 2011 opinion (and if you haven't read footnote 14, now's a good time to do so), why should we have any faith that the FISA Court is in a position to meaningfully review what the government is up to in cases other than those in which the government comes clean and admits that it materially misrepresented the NSA's activities to the FISA Court? Perhaps what Carrie meant to say is that yesterday's disclosures establish that "the debate over whether the FISA Court can be an effective check on government surveillance activities is over." If that's what she meant, then there's not that much daylight between us, after all. As I've argued all along, I think the solution here is to put more teeth into the FISA Court's review of the government's applications, and one cannot come away from Judge Bates's opinion without appreciating just how much more of a role the court can play--at least when it has all of the relevant information. Unlike Carrie, however, I take yesterday's disclosures as rather dramatic proof that we're just not there yet--that the FISA Court can't adequately serve its oversight role if it must rely entirely on the government's representations, at least three of which materially misled the court about the scope of three different NSA surveillance programs, and thereby induced judicial decisions that, for months (if not years), authorized activities that the court never intended to sanction. Is Carrie okay with this regime entirely because, even though it's happened three times (that we know of) already, it will never happen again? Of course, reasonable people can and will disagree about what the right answers are here. But, Carrie's post to the contrary notwithstanding, one need not be against governmental surveillance powers in their entirety to think that yesterday's disclosures only further underscore the need to better empower the FISA Court, rather than accepting the (increasingly alarming) status quo.
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.
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The court’s ruling in FBI v. Fazaga could have significant implications for future challenges to government surveillance under FISA and to the government’s use of the state secrets privilege.