The bill would require that the 11 judges on the FISA court be nominated by the president and confirmed by the Senate. The bill would maintain the current seven-year term served by FISA court judges. It is probably going nowhere, and will get very little media coverage.
That’s too bad. The bill is meant to do something about the current state of affairs on the FISA court, which has effectively led to the creation — by appointed judges — of a body of secret law that has determined that the government can vacuum up a massive amount of personal data about private citizens without violating the Fourth Amendment. As the New York Times’s Eric Lichtblau recently reported:
All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents.
In an email to me, Schiff put it another way:
“Given the breadth of the FISA court opinions and their virtual unreview-ability, the selection of FISA judges should be subject to nomination and confirmation, and not left to the sole discretion of the Chief Justice.”
A small number of lawmakers have advanced a handful of ideas to do something about the secrecy shrouding the FISA court. There is the above effort by Schiff, which is co-sponsored by several other Members of the House. There is an effort supported by around a dozen Senators that would compel declassification of the key FISA court opinions authorizing surveillance, which has a companion measure on the House side.
There is also another effort being pushed by Senator Richard Blumenthal of Connecticut that would bring transparency to the FISA court by, among other things, providing for a privacy advocate to argue on the public’s behalf so privacy rights are considered by the FISA court. The idea would be to prevent the decision-making from occurring only with input from one side — the government.
None of these has gotten much ink, and what continues to remain striking is that, for all the intense media attention to the NSA story, almost no attention has been given to efforts such as these that would actually do something about the problem, or at least one important dimension of the problem. There is not nearly enough media coverage of the various policy fixes that would begin to correct an aspect of this that everyone should agree is problematic, no matter what people think of the NSA programs themselves — the secrecy that shrouds their legal rationales.
“Congress has the opportunity to increase transparency and make real reforms to the FISA court,” Schiff told me. “This must not be lost in the crush of media attention that has accompanied Snowden’s encampment in a Moscow airport.”
The reason for the lack of coverage of these policy fixes is that they have little chance of going anywhere. Yes, the support for these programs in Congress is widespread and overwhelming. But is the support for the secrecy shrouding them all that widespread? That’s less clear. Some Democratic leaders are now on record supporting declassification of the FISA court opinions, and Obama has allowed that concerns about this secrecy are legit. So you’d think these efforts would merit a bit more attention. But they just aren’t getting any. Which leaves those of us who still hope (at a minimum) for more transparency around these programs no choice but to keep chipping away in hopes that one of these days they’ll gain a bit more traction.