Reaching a Proper Balance

Editor’s note: What follows is unique on Slaw, in that it is a pseudonymous post. We have entertained many pseudonymous comments, but not a column or blog entry. I do not expect this rarity to be repeated. The writer is a Canadian public sector litigator who prefers to remain anonymous to emphasize that the views expressed are not purported to be those of his employer. His identity is known to me. The writer and I are aware of the irony in writing pseudonymously about a government spying on its citizens.
Simon Fodden

Edward Snowden’s recent disclosures have revealed a need to rethink the way that the current legal structure governing the clandestine activities of intelligence agencies provides for proper oversight by Congress and the public at large.

In a democracy, elected representatives cannot be permitted to pass secret laws, and fortunately they do not. When the information leaked by Snowden was gathered, the FISA court was operating pursuant to laws that were open to the public. However, the practical effect of any law is only as good as a Court’s interpretation of that law. Legislators and the public can do their best to ensure that the letter of the law is perfectly clear, but if a Court chooses to interpret the law in a manner that does not conform with anyone’s plain reading of the law, the practical effect is a bad law. And, if the Court’s decisions are classified, then the public can have no assurances that their carefully structured laws are being properly applied.

The practical solution to this problem until now, has been to allow elected members of Congress to have access to those decisions. However, since the contents of those decisions are classified, the elected officials have been prohibited by law from revealing anything about their contents. This renders their supervisory function meaningless.

First, most politicians have no real incentive to provide proper oversight because to criticize the abusive interpretation of the letter of the law would be to open themselves to accusations of being soft on terrorism without being able to point to specific instances where the Courts and Executive Branch have vastly expanded on the plain meaning of the law.

As an example, the Snowden affair has revealed the powerlessness of the supervisory role of the Senate Intelligence Committee. When Senator Wyden asked the National Intelligence Director a simple question, Director James Clapper provided a clearly erroneous answer–as we now know only due to the Snowden leaks. Why did he do so? A skeptic would say that he lied because he realized that Senator Wyden had no forum where he could challenge the Director on the lie.

Second, there is the danger that the Executive Branch would use its expanded intelligence powers to gather information on political opponents, its Congressional overseers and even the Judiciary to blackmail them into submission. One need only look back at the extraordinary abuses and political favours that occurred during J. Edgar Hoover’s reign at the F.B.I. to see that this is a threat to basic democracy.

Third, the only way that the public at large ever found out that the NSA and the Judiciary have been finessing the plain text of the law, was through Mr. Snowden’s illegal leaks. And although Mr. Snowden provided the U.S. public with the necessary information to be able to engage in an informed debate about the breadth of the U.S. surveillance state, Mr. Snowden is now looking at either a lengthy prison sentence or permanent exile. Is this a satisfying ending?

Snowden leaked because he had no other legal recourse to ensure that his concerns would be evaluated by the public, or even by a duly elected representative of the public. The elected representatives had no political framework for adequately challenging the Executive and the FISA court’s interpretation of the law. And lastly, national security was possibly harmed because Snowden had to go rogue and had no avenue to have any discussions with anyone about the implications of releasing the information that he ultimately leaked.

Over the last couple of weeks I have heard plenty of commentators on the ideological right calling for Mr. Snowden’s traitorous head and going on about the necessity of these surveillance measures (while also arguing that the data gathered is inconsequential). I have also heard plenty of commentators on the left virtually denying the need for any state secrecy and praising Snowden as a hero. But I have not heard of any solutions And without solutions that genuinely allow for the collection of vital intelligence while also ensuring that the Executive and Judiciary do not ride roughshod over the clear intent of publicly enacted laws, these debates will go on in circles. Accordingly, here are my humble proposals for achieving a balance. Whether it this is the correct balance, is a matter for public debate:

1) There should be a presumption that information gathered by the Executive Branch about its private citizens should be accessible to the particular citizen whose information is gathered. The burden should always be on the government to prove why it would be presently detrimental to national security to release the information to that individual. This is generally already the presumption for most information collected by the State, but once the words “national security” are invoked, the Judicary has proven extremely reticent to permit access.

The ready release of this information to the affected individuals is crucial to a robust legal framework because of the Supreme Court’s recent ruling declaring that journalists have no standing to challenge the constitutionality of the NSA’s eavesdropping efforts because none of the journalists can show that they had been targeted by the NSA surveillance. Right or wrong, this is the law of the land, and as such individuals need to know whether they have been subjected to state surveillance in order to allow them to escape this classic Catch-22 situation. And, this provision is unlikely to affect national security. Your average journalist is likely to go to Court to seek this information and win, while it is ludicrous to imagine that a suspected terrorist would seek this information in court (after all they’re trying to stay in the shadows).

2) The FISA court should continue to operate in secret, but only in part. FISA requests would remain classified and the FISA court would be required to produce a written decision when authorizing or denying a warrant. However, the FISA court decisions would be divided into two parts. The first part of a decision would be publicly accessible and would deal with the Court’s interpretation of the law. It would not delve into particulars but should detail with some degree of specificity the breadth of surveillance permitted under the law. The second part of the decision would then deal with the particulars of the information requested and whether the information sought fits into the Court’s interpretation of the scope of the law. Applied to the example of the Verizon data gathering revealed by Snowden, the public part of the decision would have informed the public that the Court had interpreted the law to allow for the NSA to gather all of the metadata of all of the subscribers of an unnamed cellular phone company for a limited but renewable time period. The classified portion of the decision would then deal with the particulars of the request (geographical area, the specific carrier, etc). The pertinent intelligence agency would be permitted to apply for a delay in the release of the public portion of a given decision, but for a term no longer than 24 months. Yes, I realize this will eventually tip off malicious people who are avoiding government surveillance, but it is more important for citizens to know, in a timely manner, about the breadth of the surveillance powers of the State as interpreted by the FISA court. One cannot challenge what one does not know about.

3) All House and Senate members would have access to unvetted copies of all of the FISA warrant requests, and to the full decisions of the FISA court. House and Senate members would be permitted to take notes (currently they cannot) provided those notes are stored in a secure facility. If the CIA and NSA headquarters can be reasonably secure, then it’s possible to build facilities to accommodate the needs of elected officials.

However, here’s the most important part: House and Senate officials should be permitted to disclose specific examples of Executive or Judicial overreach from the plain reading of the law, as long as it occurs during an open debate on the floor of their respective chambers or in their committees. If an elected official is overzealous and jumps the gun resulting in harm to national security, then the elected official would have to live with the consequences during the next election.

4) Any public servant (including a subcontractor of a government agency) who has access to classified information would be permitted to disclose any classified information to any member of the House or Senate with absolute whistleblower protection. This is necessary, because otherwise, senior members of the Executive Branch who oversee the clandestine agencies could simply hide FISA warrant requests, decisions, or the extent of their surveillance activities from elected officials. With this whistleblower protection, public servants would be a check on the power of their superiors.

5) Oaths of secrecy for all public servants who have access to classified information (including subcontractors of government agencies) would have whistleblower protections that allow them to disclose classified information to the public at large but only if the employee can show that he or she approached multiple members of the House and Senate with the information, but his/her concerns fell on deaf ears. The employee would then be subject to a public jury trial, where only the information that has already been leaked would be subject to discussion during the trial. However, unlike other criminal trials, the employee seeking to rely on the whistleblower protection would have the burden of showing, on a balance of probabilities, that the Executive Branch gathered the leaked information without a warrant where a warrant was required by law, or that the FISA court’s interpretation of the law is grossly inconsistent with the plain reading of the law.

Yes, jurors are not legal experts but we let them reach decisions involving complicated expert medical evidence, and I don’t think the law is any more complicated. Furthermore, the fact that jurors are not legal experts is precisely the point. If a piece of legislation is going to have an adverse impact on the privacy interests of the average citizen, then the law should be written in such a way that a private citizen, with some limited expert guidance, can figure out what the law means.

I realize that the above safeguards will make it easier for some malicious people to avoid surveillance, as I also realize that national security will at times be hurt by whistleblowers and by elected officials who have poor judgement.

That being said, unauthorized disclosures by the former are already occurring, but they are occurring in a complete legal vacuum where people like Snowden have less of an incentive to be careful with the scope of their disclosures since they know they are already facing either jail time or exile regardless of the public value of the leaked information.

As for overzealous disclosures from politicians with poor judgement, this is always a risk in a democracy. However, U.S. citizens have no problem electing their President through the democratic process, even though the President has the power to devastate humanity with the nation’s nuclear arsenal. Surely, the democratic process can be trusted to responsibly monitor the Executive Branch. That’s what a system of checks-and-balances is all about–unfortunately in the current legal framework, the Executive Branch holds all the cards when it comes to matters of national security.