Marco Werman: I want to return now to that ruling yesterday by judge Richard Leon. The one that says that it is likely unconstitutional for the NSA to collect millions of Americans phone records. That NSA program was authorized in secret by the Foreign Intelligence Surveillance Court. It's also known as the FISA Court, after the 1978 law that created it, the Foreign Intelligence Surveillance Act. Tim Edgar knows the FISA Court's history pretty well. He was the First Director of Privacy and Civil Liberties for the White House National Security Staff under President Obama.
Tim Edgar: The reason it was set up in the first place was because Congress wanted to establish a system of checks and balances for intelligence surveillance that had previously been done just by the President acting alone. After Watergate and the investigations of the intelligence community in the 1970's, Congress thought, "This is too much power to put in the hands of the President alone, but intelligence is pretty different from normal law enforcement powers, we should establish a special court for it."
Werman: Now, it's a court, so who appoints the judges?
Edgar: Judges are all appointed by the Chief Justice of the United States, now Chief Justice Roberts. There are eleven judges, and there's one Chief Judge, who kind of administers the court.
Werman: Do we know who the judges are?
Edgar: Yes, the list of judges is public, and one thing that has come out since the summer is that a lot of these judges, at least fairly recently, have been leaning more on the conservative republican side, and that's a little new, even though the Chief Justice has been a conservative republican pretty much from the beginning of when the FISA Court has been established, they used to be a little bit more balanced.
Werman: Tim, how did the FISA Court's role change after September 11th and also its relationship to the NSA?
Edgar: Well, it changed pretty dramatically. Before September 11th, the NSA didn't really have that much to do with the FISA Court. It was mostly the FBI looking at the individual warrants that did that. After 9/11, for about 5 or 6 years, the Bush Administration essentially said, "We don't think we need to go to the FISA Court for this kind of surveillance of Al Qaeda." That was very controversial, even within the National Security establishment, and so in 2006, there was a whole series of steps. Congress approved a new law and the FISA Court started to approve these surveillance programs and put them back under the court.
Werman: Given how much technology has changed, when does the NSA now need permission to collect data from FISA?
Edgar: Basically, they still need permission under those rules, that if they're on a wire inside the United States, so that means a switch or a computer server - anything that's not over the air, they're going to need to go to the FISA Court.
Werman: Living in a wireless age, does that mean that they're freer to go find out stuff that is not connected to a wire?
Edgar: It's very counterintuitive, because even though we as consumers experience the world as a wireless world, most of the transmission that are carried in bulk around the world are carried on high speed fiber optic cables, so actually the shift has been just the opposite in terms of international communications - the stuff the NSA is interested in has been shifting away from satellites and wireless, long distance transmissions, into wire line communications over high speed fiber optic cables.
Werman: So, what do you think of the critiques then, that say the court is designed for a different era and isn't setup for the mass surveillance of today?
Edgar: I think that's basically right in the sense that the FISA Court is being asked to do so much more than what it was set up to do. It was basically set up to provide a simple yes or no approval to national security wiretaps, and now they oversee very large surveillance operations.
Werman: So Judge Richard Leon, who ruled yesterday on the unconstitutionality of collecting phone call information, stayed his injunction in order for the US government to appeal it, but it was the first successful legal challenge against a surveillance program. How do you think FISA will figure into pressure to ease up on mass surveillance?
Edgar: Well, I think that that is an example of the FISA Court no longer having the field to itself. It was the first time that any judge outside the FISA Court had actually reached the merits of this issue. It'll be interesting to see if that ruling stands up on appeal or not, but we now have a conflict between two different federal courts and their view of the constitutionality of these activities.
Werman: Tim Edgar, a visiting fellow at the Watson Institute for International Studies at Brown. Thank you very much.
Edgar: Thank you.