Leave it to the American people to pinpoint the place that needs fixing in the US government's vast antiterrorism surveillance program: the courts that approve the spying.
A July survey by the Pew Research Center shows that the majority of Americans (56 percent) do not believe the courts have placed adequate limits on the government's collection of phone and Internet data.
They're right.
The court responsible for authorizing surveillance, the Foreign Intelligence Surveillance Act (FISA) court, makes its decisions in secret. It's a judicial black box issuing opinions and making civil law that have dramatically altered the balance between liberty and security. The court makes these decisions after hearing from only one side – the executive branch.
This lack of an adversarial process, in which both sides have advocates, is unique to the FISA court in the US legal system. Further, every one of the judges responsible for issuing these decisions is picked by just one man – the chief justice of the Supreme Court. Most of Chief Justice John Roberts's appointees have been Republicans.
To restore public confidence in this process, I have proposed legislation in the Senate to create a "special advocate" whose client will be the Constitution. The advocate's mandate will be to argue for limits on surveillance, challenge the evidence presented, and protect individual rights as guaranteed in the Constitution. When appropriate, the advocate will also petition the court for disclosure of rulings.
Also, I have proposed changes in selecting FISA court judges to ensure greater geographic and ideological diversity on the court.
Appropriate, targeted surveillance is important to ensure our safety at home and abroad, but Americans must be confident that constitutional rights are protected. My proposals will balance those concerns and implement fair processes to produce just, legitimate outcomes.
Richard Blumenthal is a Democratic US senator from Connecticut.
