The Foreign Intelligence Surveillance Court has proposed new rules to comply with the provisions of the FISA Amendments Act of 2008. The Court reviews government applications for intelligence surveillance and physical search under the Foreign Intelligence Surveillance Act (FISA).
The proposed FISA Court rules (pdf) provide new procedures by which telecommunications companies can petition the Court to modify or dismiss a court order or a directive from the Attorney General or the DNI requiring them to assist in electronic surveillance, to provide “any tangible thing,” or to adhere to a nondisclosure requirement concerning intelligence surveillance. Meanwhile, other procedures would permit the government to petition the Court to compel cooperation by a non-compliant telecommunications provider. A new section in the proposed FISA Court rules accordingly addresses the conduct of “adversarial proceedings,” a term that does not appear in the current rules (last modified in 2006).
The proposed new rules make other minor editorial changes in current procedures. For example, the existing rules provide for publication of FISA Court opinions, but state that “Before publication, the Opinion must be reviewed by the Executive Branch and redacted, as necessary” to ensure that properly classified information is not disclosed. In a slight but possibly noteworthy revision, the proposed new rules state that “Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary….”
The FISA Court has provided an opportunity for public comment on the new rules. Comments are due by October 4, 2010.
The FISA Amendments Act of 2008, which provided the impetus for the new rules, was strongly opposed by civil liberties groups because it granted immunity to telecoms that may have violated the FISA by implementing President Bush’s Terrorist Surveillance Program, which circumvented that binding statute altogether. The 2008 Amendments were also opposed by several Senators who went on to become leading figures in the Obama Administration and who expressed concern that the Act did not give the FISA Court enough independent authority.
“Although the bill gives the FISA Court a greater role than earlier bills did, it still fails to provide for a meaningful judicial check on the President’s power,” said Senator Joe Biden during the July 9, 2008 floor debate on the Act.
Likewise, “while the bill nominally calls for increased oversight by the FISA Court, its ability to serve as a meaningful check on the President’s power is debatable,” said Sen. Hillary R. Clinton, explaining her decision to vote against the Amendments.
But the FISA Amendments Act was supported by then-Senator Barack Obama, along with a majority of other Senators and Congressmen, and it was enacted into law.
Greg McNeal and Marc Ambinder believe that the proposed FISC rules signal a change in the court’s attitude towards the executive branch’s authority over classified information, indicating that executive branch review would be “optional” under the new rules. But that is almost certainly a misunderstanding.
The modified language may invite such a misunderstanding. Thus, the existing rule 5c states:
“Before publication, the Opinion must be reviewed by the Executive Branch and redacted, as necessary, to ensure that properly classified information is appropriately protected pursuant to Executive Order 12958 as amended by Executive Order 13292 (or its successor).” (emph. added)
The proposed new rule 62 states:
Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that classified information is appropriately protected pursuant to Executive Order 13526 (or its successor).” (emph. added)
Based on the change in wording from “must” to “may, as appropriate”, McNeal concluded that “the Executive Branch review requirement is now optional.” But that is a hasty and likely erroneous reading.
Note first that the existing rule applied only to Opinions (which “must” be reviewed), whereas the proposed new rule applies more broadly to an “order, opinion, or other decision” (which “may, as appropriate” be subject to review). Is it sensible to think that every FISC decision and order, even decisions on scheduling matters or orders granting leave to exceed a standard page limit, must be subject to classification review by the executive branch prior to publication?
Even full-fledged Opinions may reasonably be exempt from any need for classification review. On August 27, 2008 the FISC issued an Opinion (pdf) denying an ACLU motion for leave to participate in court proceedings. There was nothing classified in the ACLU motion or in the government opposition. Why would anyone suppose that executive branch review of the subsequent Opinion should be required prior to publication?
Does this mean that the FISC is going soft on executive branch authority over the classification system? I don’t think so. Both current and proposed rules explicitly acknowledge the authority of the current executive order concerning classified information and the need to ensure that “classified information is appropriately protected” under that order.
In fact, one could argue that the Court has moved in the opposite direction. The existing rules speak of protecting only “properly classified information,” whereas the proposed new rules eliminate the adjective “properly” and apply categorically to all classified information. Thus, in its proposed rules the Court has seemingly renounced any role in validating the proper classification of information by the executive branch.
Update 2:
Greg McNeal responds here.
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