While one would expect the majority of warrant requests made by authorities to be accepted by the magistrate, the rejection rate of the FISA court is so insanely low that it’s reasonable to wonder if the process provides only a Potemkin simulation of oversight rather than actual oversight. U.S. District Judge Nancy Gertner confirms suspicions of empty formalism:
As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.
Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said.
It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.
The fact that the FISA court is barely any kind of check at all of course makes it all the more remarkable that the Bush administration was unwilling to follow the statutory guidelines.