FISA Court Says It Doesn’t Have to Follow The Law If It Doesn’t Want To

On Friday, a secretive court issued an order asserting that it does not need to listen to an expert panel as first prescribed in the USA Freedom Act.

Issued at the end of last week, the Foreign Intelligence Surveillance Court (FISA court or FISC) ruled that it would not hear from an expert panel for friend-of-the-court analysis. In cases where the legal conclusion is “obvious,” the court will only hear arguments from the side of the government.

With the sunset of Section 215 of the Patriot Act on June 1, the USA Freedom Act was signed by President Barack Obama the next day. The act was designed to give the NSA six months to transition out of bulk collection of phone data. It also says that the FISC “shall” appoint a friend-of-the-court, or amicus curiae, on “significant” or “novel” questions of law.

In writing that the court does not need to consult with a privacy panel, Judge Dennis Saylor wrote:

“The statute provides some limited guidance, in that it clearly contemplates that there will be circumstances where an amicus curiae is unnecessary (that is, ‘not appropriate’) . . . at a minimum, it seems likely that those circumstances would include situations where the court concludes that it does not need the assistance or advice of amicus curiae because the legal question is relatively simple, or is capable of only a single reasonableness or rational outcome.”

Julian Sanchez of the Cato Institute weighed in with concern:

“If the point is to ensure the court is hearing a different perspective, whether the [amicus provision] kicks in shouldn’t depend on whether an issue seems obvious before the court has heard any counter arguments.”

Privacy advocates were notoriously upset with what was perceived as a watering down of the USA Freedom Act. Amie Stepanovich, a policy manager at Access, an international digital-rights organization, expressed in the National Journal:

“It is the job of the amicus to raise issues that may not be readily apparent on first blush, meaning that what first may appear to be a clear-cut decision actually raises underlying questions. The Court must respect the presumption of the statute in favor of appointing the amicus.”

There have been other, unsuccessful attempts to assure there is a voice before the secretive FISC. Although the court did not outright reject occasionally hearing from a friend-of-the-court, Saylor’s ruling has shown that it is still difficult to reform the national security state.

Photo Source: AP