The Two Faces of the Foreign Intelligence Surveillance Court

Abstract

When former National Security Agency contractor Edward Snowden leaked a massive trove of information about secret intelligence-collection programs implemented under the Foreign Intelligence Surveillance Act in the summer of 2013, U.S. surveillance activities were thrust to the forefront of public debate. This debate included the question of whether and how to reform the Foreign Intelligence Surveillance Court (FISA Court), the statutorily created secret court that reviews government applications to conduct surveillance in the United States. This discussion, however, has largely missed a critical feature of the way the FISA Court works. As this Article will show, since 9/11, the FISA Court has been playing not only its traditional role of “gatekeeper,” but also the additional — and entirely different — role of “rulemaker.” This is the first scholarly examination of this dichotomy and its implications for reform. Further, the Article is particularly timely in providing an assessment of the recently enacted USA Freedom Act of 2015, Congress’ attempt to reform the Court. I argue that, viewed through the lens of the Court’s dual roles, the scholarly and public conversation has fallen short in two important respects. First, it has failed to give the Court sufficient credit for its laudable performance as gatekeeper, and second, it has ignored the implications that the gatekeeper/rulemaker dichotomy has for reform. As a result, I conclude that the USA Freedom Act is not only woefully inadequate to remedy the problems that it targets but also fails entirely to address additional problems with the FISA Court. In light of these conclusions, the USA Freedom Act represents a missed opportunity. In not fully appreciating or accounting for the unique challenges that the Court’s rulemaking function poses, the Act does not go nearly far enough in bolstering the Court’s rulemaking competence. Moreover, the Act neglects (as has the public debate) a critical area for reform: ensuring sufficient flow of information from the executive branch to the FISA Court. I therefore explore the nature of this challenge and offer some additional reform ideas for consideration.