Reforming the FISA Court

Here is a short article summarizing what we have learned about NSA spying in the last year. Its quite a lot.

In looking at the issue, there are at least three perspectives to take. One can ask whether the spying is consistent with the Constitution’s original meaning, with the Constitution as it is interpreted to day, and with good policy.

Let me here talk about the last question: good policy. I should say that I don’t have definite views on exactly how much access to information the NSA should have. I suppose it depends on how useful that access is in combatting terrorism and how much it infringes on privacy rights. I am open to arguments on both sides of this issue.

What I do have strong views about is the need for more oversight by Congress, outside bodies, and the public. There are some essential reforms that are needed, especially for the FISA court. First, FISA decisions need to be made public to a much greater extent than they are now. It is simply absurd that so few decisions are available. Second, a public advocate should be appointed who would argue against the government’s position in court proceedings. (Perhaps there should be two advocates who could make independent arguments and place checks of a sort against one another.) Third, the members of the court should not be selected by the Chief Justice. It is a scandal that 12 of the 13 members are Republicans. The judges should be selected in such a way so that they represent a cross section of views on the relevant issues.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review.  His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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