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Fixing the FISA Court and Search Warrants Generally

At the law lunch yesterday we were discussing the special FISA Court which has to approve certain kinds of search warrants for electronic communications, including the famous one which let the NSA see who is making phone calls to who. One topic that came up was court composition. The court is made up of ten or so federal district judges selected by the Chief Justice of the US Supreme Court for 7-year terms, and no judge can serve two terms. The police or NSA go to one judge on it and ask for a warrant. Appeals are made to a special 3-judge appeals court, also appointed by the Chief Justice. Further appeals can be made to the U.S. Supreme Court, I imagine.

Problem 1. Currently almost all of the judges were created judges by Republican presidents, and this looks bad when they are also chosen by a conservative Chief Justice.

Solution: Select which judges are asked to be on the court randomly. My guess is that liberal judges don’t want to be on the court, but Prof. Stake guesses the opposite. Whatever may be the case [DOES ANY READER KNOW?], we shouldn’t give the Chief Justice that much power, and even if he’s not abusing it, he would benefit from not being perceived to abuse it.

Problem 2: Forum-shopping. I don’t know, with any sort of search warrant, whether the government gets to choose which magistrate or judge to ask for a warrant, and whether they can get away with slightly altering the warrant and asking another one.

Solution: Use random assignment of judges, and let the assigning computer system check the warrants for duplicate targets.

Problem 3: The court is one-sided— the person under investigation does not get to contest the warrant until later, which at the very least is after the search occurs. Ordinary search warrants have exactly that same problem. We can’t always let the person under investigation find out, though, because that wrecks the investigation. After lunch I discovered though that the government has to ask especially for a “sneak and peek” warrant to delay telling the person searched, and even then the government tells them after a judicially decided period of time— most often 90 days. So it seems it actually is possible to bring the legitimacy of these warrants to the public eye and to court. I still don’t understand what is done if the investigation lasts more than 90 days, though.

Solution: Appoint a public defender. Do this for regular search warrants, not just FISA ones— I would guess that there is much more abuse at the local level, where lawyers and magistrates (not even judge are needed to approve warrants) are less skilled and much much more overworked. The public defender would be sworn to secrecy, and can be a government employee. He would be restricted to seeing the same materials as the judge, but he would be devil’s advocate and would also be able to appeal cases to the next level. This would be expensive, but worth it (use some of the money that is so extravagantly spent on public defenders in death penalty cases).

UPDATE: Prof. Vermeule, in his 2005 paper, Libertarian Panics, tells us that whatever worries one may have about FISA, it is nothing new— the system has not really changed since 1978, and the change then was to end *unlimited* government surveillance of electronic signals:

‘[T]he Act did not initiate this practice. The system of secret search and wiretap
warrants, granted in a secret hearing by a group of federal judges, without notice to
the target, was established 25 years ago by the Foreign Intelligence Surveillance Act
[of 1978]. FISA was passed because before 1978 authorities could conduct searches
to stop threats to national security without any judicial warrants at all.24’

So there is actually a double or nested baseline error in the hysteria about the Patriot
Act’s surveillance provisions. The Act’s only significant contribution to the law in this
area is Section 218, which eliminated administrative and judicial interpretations of the
FISA that had created a “wall” of separation between the information held by counterintelligence officials and that held by law-enforcement officials. But most of the FISA was in place long before the Patriot Act; and the FISA itself represents a libertarian,
rights-protective regime, relative to the pre-1978 legal baseline.”

On the other hand, in one source I read that probable cause is not required— just Justice Dept. certification that the search is legitimate— that *any* district judge can grant the same kind of warrant as the FISA court, and the National Security Letters are a way to bypass the FISA court entirely. I don’t have time to sort it out.

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