Yesterday, Democratic U.S. Representatives Adam Schiff and John Carney introduced H.R. 3159, the Ensuring Adversarial Process in the FISA Court Act, in an attempt to counter the extraordinary spying powers granted by the FISA Amendments Act. H.R. 3159 would enable the Privacy and Civil Liberties Oversight Board, which has been appointed by President Obama, to in turn appoint lawyers to present arguments in front of the FISA court, a rubber-stamp council of judges that approves large numbers of electronic surveillance programs that spy on the private communications of Americans.
It’s a sweet idea, having the FISA court act a little bit more like a real court of law, but in application, there is little reason to believe that the Ensuring Adversarial Process in the FISA Court Act would actually bring NSA spying back under control, in accord with the Constitution.
First of all, President Obama has purposefully obstructed the functioning of the Privacy and Civil Liberties Oversight Board, delaying the board from even meeting for over five years. The Board is just beginning its work, and there’s no evidence that it has any effective power to counter the National Security Agency’s Big Brother surveillance network.
Secondly, people currently appointed the task of keeping an eye on the FISA system in order to prevent the violation of Americans’ constitutional rights have been caught lying down on the job. Just a couple of days ago, the Justice Department was forced to admit that its internal ethics watchdog ignored complaints from the FISA court itself. The complaints indicated that the NSA was deceiving the FISA court, but nothing was done to address the complaints.
The Ensuring Adversarial Process in the FISA Court Act keep the public in the dark about NSA spying. Lawyers appointed to represent the interests of the American people would not actually report to the American people. Their own activities would remain secret. As appointees of a board that has itself been appointed by the Executive Branch that is conducting unconstitutional spying in the first place, there is little reason to believe that the lawyers envisioned by H.R. 3159 would actually have the civil liberties of the American people at heart.
The time in which reforms could have been effectively introduced has long since passed. For trust to be restored, what’s necessary is a more categorical move. Americans need to see the Patriot Act and FISA Amendments Act completely repealed, and the NSA cut back down to the size it was at the end of the 20th century.