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The Foreign Intelligence Surveillance Court (FISC) relies on secrecy and, given the sensitive decisions they make, that is understandable to a certain degree – mainly because of the way the judges interact with the government to get to the bottom of weaknesses in FISA applications, and concerns regarding the legal requirements involved.  

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However, as required by the 2015 U.S.A. Freedom Act – which requires the Director of National Intelligence and U.S. Attorney General to conduct declassification reviews of FISC opinions – FISC’s decisions, orders and opinions should eventually be published.

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Let’s get real here. Courts that met ex parte – or where only the judge and the government are present – is not exactly the American way.  As the U.S. Supreme Court observed in Richmond Newspapers, Inc. v Virginia, “people in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.”

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Additionally, we need to demand as many safeguards as possible to promote diversity and discourage group think and bias within the FISC.  The current process does not ensure against these. 

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Currently, “the Court sits in Washington D.C. and is composed of eleven federal district court judges who are designated by the Chief Justice of the United States. Each judge serves for a maximum of seven years and their terms are staggered to ensure continuity on the Court. By statute, the judges must be drawn from at least seven of the United States judicial circuits, and three of the judges must reside within 20 miles of the District of Columbia. Judges typically sit for one week at a time, on a rotating basis.” 

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Problem here is that if you only have one person choosing every single judge, they are more likely than not to have a singular thought process.  Bad idea. The Chief Justice of the United States should continue to designate FISC judges, but the appointments should be subject to U.S. Senate approval.