The Naval Postgraduate School & The U.S. Department of Homeland Security

FISC Judges Worry About Increased Workload from FISA

When it comes to applying limitations to intelligence gathering operations, it's seen as the responsibility of the political branches of the United States to decide the legal requirements within the bounds of the Constitution.

With this in mind, John D. Bates, Director of the Administrative Office of the United States Courts, has released comments on behalf of the Judiciary to better address how the Foreign Intelligence Surveillance Act - better known as FISA - should be looked at with a keen awareness of how the FISA Court (FISC) will be affected by proposed operations changes.

The Judiciary is most concerned about a significant increase in workload for the Courts as they face a rising number of FISA-related cases. Some of the changes proposed to the law would "profoundly increase the Courts' workload", according to the letter, and the Judiciary fears that there will not be a "commensurate increase in resources" with the increased workload.

"Some proposed changes would profoundly increase the Courts' workload. Even if additional financial, personnel, and physical resources were provided, any substantial increase in workload could nonetheless prove disruptive to the Courts' ability to perform their duties, including responsibilities under FISA and the Constitution to ensure that the privacy interests of United States citizens and others are adequately protected."

The Judiciary also worries about the participation of a privacy advocate. Because so much of FISA proceedings involve case-specific facts, they feel that the involvement of a privacy advocate would simply bog down an already overburdened court system.

"Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation. Advocate involvement in run-of-the-mill FISA matters would substantially hamper the work of the Courts without providing any countervailing benefit in terms of privacy protection or otherwise; indeed, such pervasive participation could actually undermine the Courts' ability to receive complete and accurate information on the matters before them."

More concerns include those involving the selection process of FISC judges, issues with public disclosure when certain aspects of cases are classified; and the avoidance of the Courts taking on an 'oversight' role that "exceeds their constitutional responsibility".

For more information about FISA and FISC, check out the following links:

The American Civil Liberties Union on FISA

United States Courts - the FISC