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Secret Courts: A History of Intrigue and Abuse
The Foreign Intelligence Surveillance Court, which approved the National Security Agency's collection of U.S. citizens' telephone records, is just one of history's many secret courts.
The fundamental premise behind secret courts like the FISC is that some decisions cannot be made in public without jeopardizing a critical national interest, such as security, defense or government administration.
Therefore, the proceedings of a secret court are closed to the public. Court records are kept sealed; they can only be seen under specific conditions by certain people, and much of the information in secret court records may be redacted before viewing by anyone outside the court. [Top Ten Conspiracy Theories]
In many secret courts, only one side of an issue is presented to the several judges sitting on the court bench. Secret court decisions are usually final and are not subject to appeal.
The names of judges who preside over secret courts may or may not be known. In most cases, even the fact that a secret court exists, or has arrived at a decision on a particular issue, is not known to the public.
The advantages of a secret court are its ability to make a decision quickly and without public knowledge of its proceedings. Many critics claim, however, that those same qualities undermine the legitimacy of secret courts.
The Star Chamber
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In medieval England, the Star Chamber was a secret court named for the decorative stars emblazoned on the ceiling of the wood-paneled room in which its judges deliberated.
The Star Chamber oversaw the proceedings of the local courts; it was also able to decide matters involving wealthy and powerful people whose influence made them immune to the decisions of lower judicial bodies.
Over the centuries, the Star Chamber was often used to break up the power of England's land-owning elites. Punishment was swift and could be severe, though the court never condemned anyone to death.
As a flexible organization with wide-ranging powers, the Star Chamber was a valuable ally to kings needing a quick and fair decision on an important matter, sometimes involving a political rival, but often involving crimes like riots, corruption and sedition.
Under some rulers, however, the secretive Star Chamber abused its considerable power to oppress and punish people — often religious dissidents like the Puritans — who had no hope of appeal.
Due to its excesses, the Star Chamber was abolished by Parliament in 1641. The chamber itself was dismantled some years later, though its legendary star-studded ceiling was preserved and can now be seen in Leasowe Castle in Cheshire, England.
'Unnatural acts' at Harvard
In 1920, a secret court was convened at Harvard University to investigate allegations of homosexual activity involving students, alumni and faculty.
The now-infamous Secret Court of 1920 was composed of five administrators who reported to Harvard President Abbott Lawrence Lowell. In their proceedings, the administrators interrogated dozens of people accused or suspected of "unnatural acts" over the course of two weeks.
Many of those questioned by the court were expelled or fired; two accused homosexuals committed suicide. A few expelled students, however, were later readmitted and went on to have successful careers.
The existence of the court was largely unknown until 2002, when a reporter from the campus newspaper discovered a box of files labeled "Secret Court" in the Harvard University Archives.
Foreign Intelligence Surveillance Court (FISC)
From the 1950s to the 1970s, the CIA, the U.S. Army and other intelligence-gathering government entities often spied with impunity on civil-rights activists, anti-war protestors, political candidates and thousands of other citizens.
To stem these abuses, the seven-member FISC was authorized by Congress in 1978. The secret court — all hearings are closed to the public and proceedings are considered classified — is responsible for reviewing search-warrant applications drafted by the National Security Agency (NSA).
According to the Federal Judicial Center, "each application must contain the Attorney General’s certification that the target of the proposed surveillance is either a 'foreign power' or 'the agent of a foreign power' and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime."
Presiding over the FISC is a three-member Foreign Intelligence Surveillance Court of Review, empowered to critique the decisions of the FISC if a government agency requests a review. Until 2002, the Court of Review had never convened.
With the passage of the USA Patriot Act of 2001, however, the role of the FISC changed somewhat. The Patriot Act extended the time periods during which surveillance can be conducted.
The Patriot Act also increased the number of FISC judges from seven to 11; the four additional judges were appointed by conservative Supreme Court Chief Justice William Rehnquist.
FISC under attack
Recognized as the nation's most secretive court, the FISC has long been a lightning rod for criticism, especially by civil libertarians. As early as 2008, U.S. Sen. Ron Wyden (D-Ore.) and other prominent officials began a campaign to open the proceedings and decisions of the FISC to greater scrutiny.
That campaign reached a fever pitch in June 2013 after The Guardian revealed that the FISC had approved an NSA request to collect the telephone data of millions of U.S. customers of telecom giant Verizon.
Their exposé resulted from a leak of classified information by whistleblower Edward Snowden. The Verizon data collection, however, is just one part of a much wider surveillance program involving many more telephone service providers (such as AT&T and Sprint) as well as emails and credit-card data going back several years.
Eight senators have now introduced legislation that will require the FISC to declassify information about its decisions. "Americans deserve to know how much information about their private communications the government believes it's allowed to take under the law," said Sen. Jeff Merkley (D-Ore.), as quoted in The Hill.
The controversial NSA surveillance program also prompted the American Civil Liberties Union (ACLU) to file a motion with the FISC to release its opinions.
"The program goes far beyond even the permissive limits set by the Patriot Act and represents a gross infringement of the freedom of association and the right to privacy," Jameel Jaffer, deputy legal director of the ACLU, said in a statement.
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