The secret courts that oversee government surveillance of Americans are intended to protect citizens' rights. But how well do they do that job?
There's no telling. The FISA courts are secret.
But critics have long pointed out that the judges who serve under the terms of the Foreign Intelligence Surveillance Act approve the overwhelming majority of requests from the government. From that, you could infer either that the government is making only valid requests for surveillance authority or that the court is hearing only the government's side of the argument in each case.
James G. Carr, a federal judge in Ohio who served as one of the FISA judges, believes in the FISA process. But he also believes that the jurists currently serving need a more complete picture of some of the cases presented to them.
"During my six years on the court, there were several occasions when I and other judges faced issues none of us had encountered before," Carr wrote last summer in the New York Times. "A staff of experienced lawyers assists the court, but their help was not always enough given the complexity of the issues. ... Having lawyers challenge novel legal assertions in these secret proceedings would result in better judicial outcomes."
Carr argued that "Congress could ... authorize the FISA judges to appoint, from time to time, independent lawyers with security clearances to serve 'pro bono publico' — for the public's good — to challenge the government when an application for a FISA order raises new legal issues."
Carr joins The Daily Circuit to discuss the issues arising from U.S. reliance on FISA courts.