Government accountability groups on Monday backed two proposals by U.S. Sen. Richard Blumenthal to reform the “secret courts” overseeing the nation’s surveillance programs.
Blumenthal, along with the Connecticut chapters of the American Civil Liberties Union and Common Cause, held a press conference at the Legislative Office Building to support two bills the senator proposed last week.
Both bills are a response to information revealed by defense contractor Edward Snowden, who leaked documents shedding light on the scope of the federal government’s ongoing surveillance activities.
The Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review, jointly known as the FISA courts, are the judicial bodies charged with approving and overseeing those surveillance activities. Blumenthal said few Americans are aware of the courts because their activities are not released to the public.
“It’s an anomaly in a Democratic, open, and transparent government. It’s an anomaly because it’s a black box: a secret court that decides in secret, issues secret opinions, and reaches results in warrants for surveillance and searches that are secret,” he said. “It is different fundamentally from every other court in our history.”
Blumenthal said the courts have approved nearly all the surveillance requests made by intelligence agencies over the past three decades. In 33 years, the courts have rejected just 11 out of some 34,000 requests, he said.
The two bills, which Blumenthal and other senators have proposed, aim to establish a check and balance mechanism on the secretive courts and to open some of its rulings to disclosure.
One bill would create an advocate within the court to represent the privacy interests and individual rights of the American people. The other piece of legislation would change the makeup of, and appointment process to, the two courts.
Blumenthal said the advocate proposed in the legislation would be charged with ensuring that Americans’ constitutional rights to privacy and due process are upheld. He said the court lacks the adversarial process present in most courts.
“The special advocate would present facts and law that would test, challenge, and question the government’s case just as we do in every other court in this country. Courts make better decisions when two sides are represented,” he said.
The other bill would change how judges are appointed to the courts. Current law leaves the decision entirely up to the U.S. Supreme Court’s chief justice. Blumenthal’s bill would require appointees to be approved by a majority of the high court’s justices.
The bill also would expand the court and require that appointee judges be recommended by the senior judicial officials from each circuit of the federal Court of Appeals.
Representatives of Common Cause and the ACLU agreed the courts were in need of more transparency. Cheri Quickmire, executive director of the Connecticut Common Cause, said the powers and secretive nature of the courts run counter to the group’s mission of open government.
“Responsible government absolutely requires a court that is not secret, a court that is more accountable and more transparent to the public,” she said.
David McGuire, staff attorney for the Connecticut ACLU, said the courts were “shrouded in secrecy” and have become a “rubber stamp” for surveillance requests.
“There is not any meaningful due process. Having a special advocate would go a long way to solving some of these problems,” he said. “Currently, the FISA judges only hear from one side.”
The proposals come as Americans around the world are being advised by the U.S. Government to take precautions based on reported terrorist activities. Blumenthal said there was support for reforming the FISA system even with the new security warnings.
“Speed and security would be in no way be impeded,” he said. “. . . The decisions would be made in granting the warrants by the FISA court without necessarily any of these special advocates or others being involved. But at some point, there would be the other side represented on issues of law . . . and at some point there would be greater transparency on those decisions.”
Edward Snowden
Blumenthal was also critical Monday of Snowden and the Russian government, which recently granted him political asylum for one year. U.S. authorities have sought to charge the former NSA contractor with leaking classified documents.
“Edward Snowden broke the law and he should be prosecuted. The fact that Russia has granted him asylum is an outrage,” Blumenthal said, adding that he urged President Barack Obama to cancel a planned summit with Russian President Vladimir Putin over the decision.
“I think we need to re-evaluate our entire relationship with Russia,” he said.
A poll released by Quinnipiac University on Thursday suggests that more than half of Americans view Snowden as a whistleblower rather than a traitor. The university surveyed almost 1,500 voters between July 28 and July 31 and found that 55 percent saw him as a whistleblower, compared to 34 percent who viewed him as a traitor.
In a statement, Peter A. Brown, assistant director of the university’s polling institute, noted that the survey was conducted before Snowden accepted asylum in Russia.
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