WASHINGTON — The secretive court that weighs whether to let the U.S. spy on terror and espionage suspects would have to hear from lawyers arguing against doing so under a new plan introduced Thursday on the heels of Congress’ rejection of sharp limits on government surveillance.
The new plan by Rep. Adam Schiff, D-Calif., would force the Foreign Intelligence Surveillance Court to hear both sides of classified cases. The court, which isn’t open to the public, currently hears only from Justice Department attorneys when it considers approving applications to seize Internet and phone records from private companies. The government uses those records to target foreign suspects in terror and spy cases.
The surveillance court has been under rare scrutiny and criticism after National Security Agency leaker Edward Snowden revealed in June two classified programs that aim to thwart terror attacks but that critics say invade privacy rights. The court approved one of the programs, letting the government sweep up millions of Americans’ telephone records each day.
Schiff, a member of the House Intelligence Committee, said allowing a court debate would give “the benefit of an adversarial process and hearing conflicting views.”
His bill would task the federal Privacy and Civil Liberties Oversight Board with deciding which of the cases should be challenged by opposing counsel, and potentially appointing the lawyers to argue against the Justice Department during the closed-door court hearings. The board was recently directed by President Barack Obama to scrutinize government spying.
The plan comes on top of already filed legislation to declassify more of the court’s secret opinions and to require its judges to be specifically nominated for the panel by the president and then confirmed by the Senate. Federal judges are already nominated and confirmed, but are later selected for the surveillance court solely by the Supreme Court chief justice.
Taken together, the measures “would give the public more confidence in the work product of the court,” Schiff said. He said 10 of the 11 current surveillance court judges were appointed for the federal bench by Republican presidents, as was Supreme Court Chief Justice John Roberts.
Critics have derided the court as a rubber stamp of approval for the government. Last year, the government asked the court to approve 1,789 applications to spy on foreign intelligence targets, according to a Justice Department notice to Congress dated April 30. The court approved all but one — and that was withdrawn by the government.
Last week, former U.S. District Judge James Robertson, who served on the secret surveillance court between 2002 and 2005, described it as independent but flawed because only the government’s side is represented effectively in its deliberations.
Schiff announced his legislation as opponents of the NSA’s surveillance programs insisted they will continue to challenge it after a narrow defeat in the House.
Furious lobbying and last-minute pleas to lawmakers ensured victory for the Obama administration as the House narrowly voted Wednesday to spare the NSA program. Unbowed, the libertarian-leaning conservatives, tea partyers and liberal Democrats who led the fight said they will try to undo a program they called an unconstitutional intrusion on civil liberties.