The National Security Agency (NSA), Director of National Intelligence (DNI), and the Foreign Intelligence Surveillance Court (FISC) are engaged in a shameless public relations full court press heading into the President's speech on Friday, where he is expected to announce NSA "reform." "Reform" is in quotes because it's looking more and more like the changes will be more cosmetic than meaningful.
The FISC weighed in on the policy debate opposing any reform. The New York Times calls the letter from the "nation's judiciary," but if the FISC were a proper court, it would not be weighing in on policy debates.
DNI General Counsel Robert Litt has been trotting out the surveillance state's talking points that everything NSA does is legal and proper.
Rep. Bernie Sanders, who was unable to get a clear answer about whether or not the NSA is spying on Congress, is not reassured. Well, to be more precise, in classic NSA fashion, NSA Director Alexander says NSA doesn't spy on Congress but doesn't include collecting congressional phone records as "spying."
The fact that the FISC and the surveillance apparatus are teaming up to oppose meaningful reform in advance of the President speech demonstrates to an even greater extent why such reforms are necessary.
The FISC is a secret court, that writes secret law and, even though it may give NSA some grief, ends up approving well over 90% of NSA's requests for surveillance, including the "likely unconstitutional" collection of hundreds of millions of Americans' phone records. Yet that doesn't stop the FISC from opposing hearing from an advocate to defend Americans' privacy when the FISC has failed so completely to do so in the past.
Judge John D. Bates, a former chief judge of the Foreign Intelligence Surveillance Court, urged Mr. Obama and Congress not to alter the way the court is appointed or to create an independent public advocate to argue against the Justice Department in secret proceedings. Any such advocate, he wrote, should instead be appointed only when the court decided one was needed.There are two major problems with Bates' argument. First, would it really be that terrible if the FISC had an increased workload aimed at protecting privacy? If the FISC had been a better check on NSA to begin with, we would not need to reform it. Second, my clients, NSA whistleblowers William Binney, J. Kirk Wiebe, Edward Loomis and Thomas Drake had a plan to automate much of the FISC's work, which the NSA rejected because it was too efficient.
Judge Bates objected to the workload of requiring that courts approve all national security letters, which are administrative subpoenas allowing the F.B.I. to obtain records about communications and financial transactions without court approval.
Bates also complained that a privacy advocate would harm the Court's efficiency. Frankly, it would benefit greatly the Constitution and the hundreds of millions of innocent Americans being spied on to have the FISC be a little less efficient at rubber stamping government requests for surveillance.