Faiza Patel and Elizabeth Goitein write: The expiration of key surveillance authorities this spring will force Congress to grapple with the sprawling spying activities exposed by Edward Snowden. Defenders of the status quo sound a familiar refrain: The National Security Agency’s programs are lawful and already subject to robust oversight. After all, they have been blessed not just by Congress but by the judges of the Foreign Intelligence Surveillance Court, or FISA court.
When it comes to the NSA’s mass surveillance programs, however, the FISA court is not acting like a court at all. Originally created to provide a check on the executive branch, the court today behaves more like an adjunct to the intelligence establishment, giving its blanket blessing to mammoth covert programs. The court’s changed role undermines its constitutional underpinnings and raises questions about its ability to exercise meaningful oversight.
The FISA court was born of the spying scandals of the 1970s. After the Church Committee lifted the curtain on decades of abusive FBI and CIA spying on Americans, Congress enacted reforms, including the Foreign Intelligence Surveillance Act of 1978. The law established a special court to review government applications to intercept communications between Americans and foreigners overseas for the purpose of acquiring information about foreign threats. [Continue reading…]