Carrie Cordero on FISA Court Lessons for a "Drone Court"

The debate that has played out in Congress, in print and online in recent days, has resulted in a collision of two unlikely national security issues: the use of drones in targeted killing operations against al Qaeda operatives, and the activities of the Foreign Intelligence Surveillance Court (FISC or the Court), now in its fourth decade of existence. With the exception of the Members of Congress who have access to extensive information about national security surveillance and FISC rulings, and the notable recent comment on the subject by Judge Robertson, most of this debate has been an exchange amongst commentators with no direct experience with the FISC.

The groundwork for congressional action on a new national security court may very well be laid at this point. Before Congress goes further down this path, however, I would like to offer a few thoughts for consideration. In short, while creating a new national security court may seem like a relatively benign way to add a layer of oversight that will not substantially impact national security, the consequences may be significantly greater than anticipated. For the very reasons that the FISC has earned respect for its role in adjudicating national security surveillance requests, it is not the correct model for either adjudicating individual targeted killing proposals, or, reviewing the internal Executive Branch processes by which those selections are made. Here are at least three reasons why: Reason #1: The FISC is an active, scrutinizing, deliberative body, and that fact may not blend well with operational demands. The FISC is not at all the rubber stamp it has been periodically purported to be. The judges, after all, are sitting federal court judges, and any prosecutor or defense attorney will tell you that federal district court judges do not hesitate to demand information, accuracy and explanation when needed. FISC judges do not abandon their judicial sensibilities and responsibilities when they sit on the FISC. They bring all of their attention, consideration, and exacting requirements to their meaningful role on the Court. The judges also, as do all the participants in the process, bear the substantial weight of the in camera, ex parte process. While the annual public reports on FISA necessarily do not provide comprehensive insight into the process and deliberations of the Court, Members of Congress have available to them many detailed, highly substantive reports provided to the Intelligence and Judiciary Committees, that fully describe the nature of matters before the Court. The two public decisions of the Foreign Intelligence Surveillance Court of Review similarly provide insight into the FISC’s activities. This body of information should inform Congress’ consideration as to just how extensive court involvement in national security operational matters can be. Reason #2: The Court requires explanation of how the Executive Branch conducts intelligence operations, with particular emphasis on technological capabilities. Over the years, the intersection of technology, and technological advances in surveillance law, has played an increasingly important role in practice before the FISC. This dynamic was aired publicly during the extensive Congressional debate over the proposed amendments to FISA that resulted in the bipartisan-supported FISA Amendments Act of 2008. In addition, as the FISC’s Rules of Procedure articulate, the Court requires Executive Branch explanation and briefing on novel issues of technology and law. If the FISC is to serve as the conceptual model, therefore, how would a court considering targeted killing requests or processes explore its interest in technical aspects of how lethal operations are conducted? The key dynamic to understand is that once an independent court is involved, the Executive Branch does not have the option, or flexibility, of only informing the court of aspects of the operations that it prefers to disclose. The Court, if it is to be legitimate, will require whatever information it deems necessary to make an informed judgment according to its mandate. Indeed, the Foreign Intelligence Surveillance Act (FISA) authorizes, and the Court’s Rules of Procedure reinforce, that a member of the Court may request any information a judge deems necessary when considering a matter. Therefore, if the FISC is used as the model, the Executive Branch must be prepared to explain, in detail, its capabilities, technologies, innovations and compliance vulnerabilities. The intersection of the technological “how” and Court authorization is all the more difficult as technology changes. Just one example to highlight a potential scenario: what if the hypothetical new court becomes interested in collateral deaths? Would a court inquire as to the precision of missile and drone technology to prevent anyone but the identified target from being killed? Is the Defense Department and Intelligence Community prepared to fully inform the court about its equipment, techniques, technologies, designs, prototypes, margin of error and casualty counts? On the other hand, should Congress try to craft a new court that more substantially cabins the authority of the court to request additional information than in the FISA context, it is hard to imagine that federal judges would be comfortable and willing to operate in that more constrained environment. Reason #3: The FISC has successfully, and necessarily, kept its activities secret. Those observers and commentators who disagree with the targeted killing program as an instrument of the armed conflict with al Qaeda, or at least, as it pertains to Americans operating as al Qaeda, will take no comfort in the creation of another secret court. Where proponents of this proposal will see accountability and independent review; critics will see more “secret law” and yet another barrier to transparency. At the end of the day, the debate over whether targeted killing of al Qaeda operatives, particularly U.S. citizens involved in terrorist activity, is a necessary and appropriate way to execute our strategy to disrupt terrorist plots and save American lives is, more likely than not, a policy dispute. The issue is not whether the government can do it; the issue is whether it should. Adding a judicial approval process is the wrong step in solving that disagreement.