WASHINGTON, DC — Former National Security Agency Director Gen. Michael Hayden on Sunday dismissed recommended changes to the Foreign Intelligence Surveillance Court as “cosmetic,” including the idea of adding an adversarial system into the court’s workings.
One potential solution to what has been seen as the court’s “rubber-stamping” administration requests for warrants to target persons with the U.S. for eavesdropping includes adding an adversarial process to the court, one in which judges will have to hear opposing views on why a warrant should or shouldn’t be granted. Hayden, however, doesn’t see much value in such a change. “There are some things that people are calling for that I think will make people feel better, but they’re largely cosmetic,” he said. “They want an advocate at the [Foreign Intelligence Surveillance Act] court? Okay, but I don’t know if that changes anything.”
“Tony Soprano doesn’t get one,” Hayden continued. “I mean when the FBI wants to go up for domestic criminal activity, there’s not an advocate for someone up there.”
Hayden spoke after the conclusion of a forum held at the St. John’s Episcopal Church — located directly across from the White House — the first in a series on the tension between security and liberty. Hayden is a regular member of the church and in a position to comment substantively on the issue, having served first as NSA director from 199–2005, then Director of Central Intelligence from 2006 until 2009. Somewhat predictably, the retired general made the case that this summer’s leaks about the NSA’s had damaged U.S. national security more than any other leak in history.
During the talk, Hayden described the United States as being highly unusual for even having the Foreign Intelligence Surveillance Court, designed to issue rulings on when the government is allowed to target individuals within the U.S. for eavesdropping, in place. “The fact that the courts are involved in intelligence collection makes the United States an anomaly on this Earth,” he said. “In most countries, intelligence collection is centered, anchored, and exclusively the business of the political branches of government. Only we Americans in the 1970s decided to put some of our collection under the supervision of the courts.”
Critics, however, have called the system “broken,” noting the very small number of times the court has issued a rejection for a warrant. The Obama administration has previously defended the low number of rejections as being due to diligent preparation and only approaching the court when the case for issuing a warrant was strong. Recently declassified documents also back the idea of a less suppliant FISA court, but instead one that is in itself often frustrated with the lack of information the government has been willing to provide.
Hayden does see some exceptions as to when an adversarial system might be of value. “When the FISA Court makes a broad decision on the constitutionality of a broad course of action, then having a counter-point might have some value. But going up or down on individual warrants, I don’t think so.” At present, the court meets in secret and its rulings are automatically classified, making it difficult to discern just how frequently rulings of that sort are issued, even as it becomes clear that they are re-writing the rules for how the government can monitor its citzens.