By Eric Geller
James G. Carr ’62, a senior judge on the U.S. District Court for the Northern District of Ohio and a former member of the Foreign Intelligence Surveillance Court , described the process through which the federal government conducts electronic surveillance and railed against National Security Agency whistleblower Edward Snowden in a talk in the Gund Gallery’s Community Foundation Theater on Friday, Oct. 25.
During his talk, which was co-sponsored by the Presidential Inauguration Committee and Kenyon’s Center for the Study of American Democracy, Carr discussed the differences between domestic law enforcement surveillance, such as traditional wiretaps and eavesdropping, and the surveillance that agencies like the Federal Bureau of Investigation and the Central Intelligence Agency perform to gather information about the activities of foreign nationals in the United States and abroad.
Both physical and electronic evidence searches for domestic criminal matters are accompanied by greater oversight and carry greater safeguards than foreign surveillance, Carr said. “The government’s purpose is clearly distinct and different in an intelligence-gathering operation than it is in an evidence-gathering operation,” he added.
Congress established the Foreign Intelligence Surveillance Court in 1978 by passing the Foreign Intelligence Surveillance Act to curb abuses of government spying power in the preceding two decades. Today, federal agents who want to conduct intelligence-gathering surveillance must present their evidence to one of the FISC’s 11 judges before they can proceed. “Sometimes,” Carr said, their reports “read like a John le Carr? novel, and sometimes they read like a Tom Clancy novel.”
For security reasons, FISC opinions granting or denying warrants are classified, and while FISC judges are geographically dispersed, at least three of them must live within 20 miles of the Capitol in Washington, D.C., in case the government needs to seek a warrant in a hurry.
Government agents who submit warrant applications to the court face “a very low standard,” Carr said. They do not have to “show probable cause of criminal activity,” only that the target is affiliated with a foreign power. These targets are not limited to people with terrorist connections. Through FISA warrants, Carr said, the U.S. also monitors agents of friendly governments who engage in “industrial espionage,” according to Carr, including attempts to steal major U.S. companies’ trade secrets.
Britain’s Guardian newspaper, The New York Times and other media outlets have revealed the wide net the government casts in conducting this surveillance, and Carr told his audience “every one of us in this room probably has been overheard under a FISA warrant.”
“It’s a general search,” Carr said, “that which the Fourth Amendment most directly and most clearly, unequivocally prohibits. Nobody can dispute that.”
Unlike people whose homes are raided for evidence, targets of FISA warrants are not notified unless they are indicted for a crime and a judge approves their attorney’s application to see evidence gathered under the warrant.
The surveillance court, Carr said, “matters ﾅ because we are there. [The executive] can’t simply do this on their own.”
In July, Carr wrote an op-ed in The New York Times calling for Congress to reform the court. He suggested judges be allowed to appoint outside lawyers to “represent the interests of the Constitution and the public” in cases where a novel issue, such as new surveillance technology, is present in the warrant application. Government agents are required to inform the court if their application raises that kind of issue.
In an interview with the Collegian, Carr pushed back on the idea of appointing independent lawyers in every case, and said “it would serve no useful purpose at all.”
Because warrant applications are “vetted thoroughly” by multiple agencies and few of them present novel legal questions for the judges, Carr said having “yet another person looking at [every case], among other things, would delay the process, which is delayed enough already.”
Carr had harsh words for Edward Snowden, the former NSA contractor who provided documents about NSA surveillance procedures to journalists before fleeing to Hong Kong and then Russia. He asked audience members how many of them thought Snowden’s actions were worthwhile, and upon seeing hands raise, said, “I want to try and disabuse you of that view.”
Snowden, he said, had been “in the hands of the Chinese and the Russians for months, and if anybody in this room thinks for a moment that they don’t know everything he learned ﾅ c’mon now.”
The NSA, Carr said, “does a crucially important job,” whereas Snowden, whom he mockingly called “the great American patriot,” had done “irredeemable” damage.
In the Q&A after the talk, one student asked Carr, “Why bother protecting our lives if you don’t first protect our rights?” Carr responded, “Because if we have no lives, we have no rights.”