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A Rubber Stamp, Not A Court

[ 42 ] June 15, 2013 |

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.

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  1. Incontinentia Buttocks says:

    The Bush Administration’s refusal to follow statuatory guidelines was, quite literally, a matter of authoritarian principle (remember the “unitary executive”), not a question of practicalities, which, as you say, make it totally unnecessary to operate outside the law (assuming, that is, that the 4th Amendment means next to nothing).

  2. cpinva says:

    I just always assumed the FISA court was simply a formality, to meet the minimum required under the law, not to do any meaningful oversight.

    • Anonymous says:

      “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay. So I support the compromise, but do so with a firm pledge that as president, I will carefully monitor the program,” Obama said in a statement hours after the House approved the legislation 293-129.

      “It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance — making it clear that the President cannot circumvent the law,” Obama said today.

      But the ACLU notes that the bill “permits only minimal court oversight. The FISA Court only reviews general procedures for targeting and minimizing the use of information that is collected. The court may not know who, what, or where will actually be tapped, thereby undercutting any meaningful input from the court and violating the Fourth Amendment.”

      Old news – but even if it was breaking news, not to worry. Obama is “carefully monitoring” it.

  3. BRD says:

    The second link is a duplicate of the first. Is it supposed to go elsewhere?

  4. Davis X. Machina says:

    How often does a plain old Federal grand jury refuse to return a true bill?

  5. Robot villager says:

    While one would expect the majority of warrant requests made by authorities to be accepted by the magistrate

    Why would one expect this?

    • bexley says:

      oops – that was me.

      • sibusisodan says:

        I wondered that. Some of the initial responses on an earlier thread were along the idea that any warrant-requester worth their salt will know pretty much which warrant requests are feasible and which are going to be refused, and so the existence of oversight basically discourages speculative warrant requests.

        This makes sense to me, but I’m not sure how one distinguishes this situation after the fact from a mere rubber stamp.

        • dlankerlanger says:

          This makes sense to me, but I’m not sure how one distinguishes this situation after the fact from a mere rubber stamp.

          The distinction is between ‘most’ and ‘basically all’. Nobody’s 99.97% professional, people fuck stuff up.

          That plus afaik a warrant is normally a matter of public record, so if someone wants to see if all the granted warrants are bullshit or not they can go look. As opposed to the secret intelligence kangaroo court where everything is omgclassified forever.

  6. Cheney and his puppet W didn’t want there to be ANYTHING that could/might stop them from getting what they wanted – or even slow them down.
    And Congress didn’t exactly put-up a hell of a fight.

    The only thing that eventually stopped them, was their own stupidity and incompetence – which, combined with massive hubris, led to the tragedies that followed.

    • Anonymous says:

      That’s about it, isn’t it? Their attitude toward the framework of international legality, in the creation of which the US played a huge role, made it plain that what was well described as ‘authoritarian principle’ above was their motive.

    • EH says:

      And now Congress has to shuck and jive, since that kind of truth would (should) be a sure ticket to impeachment, or at least a loss to the incumbent next election.

    • bill says:

      Looks to me like the only thing that stopped them was the 22nd Amendment.

  7. Rarely Posts says:

    The Bush Administration didn’t comply with FISA for the same reasons they created Guantanamo but also decided to detain Al-Marri indefinitely in South Carolina: they wanted to establish the precedent that the executive branch can do whatever it wants without limit as long as it is about “national security.” I’m not sure why the Bush Administration thought it was important to establish that the executive branch could: (1) spy on people, in violation of statute, without court supervision; and (2) indefinitely detain people on U.S. soil, without a trial; and (3) torture people, in violation of statute, as long as it doesn’t kill them, even though sometimes it does. But that’s the way they think government should work and they wanted to create a government that could do those things. But they’re the ones who love freedom! Nothing is a greater threat to freedom than slight increases in marginal tax rates or imposing a small tax penalty for refusing to purchase health insurance when you can afford it.

    • cpinva says:

      “I’m not sure why the Bush Administration thought it was important to establish that the executive branch could: (1) spy on people, in violation of statute, without court supervision; and (2) indefinitely detain people on U.S. soil, without a trial; and (3) torture people, in violation of statute, as long as it doesn’t kill them, even though sometimes it does.”

      Because, by establishing these precedents, unhindered by the other two branches of gov’t, future administrations (republican, as god intended), will be able to use these tools for domestic purposes, without need of national security “emergency”. who’s going to stop them? the courts and congress have both bailed on their respect responsibilities.

  8. FlipYrWhig says:

    Reforms to the FISA Court process would be something both diehard civil libertarians and reasonably content liberals could both get behind. Goalposts have been moved, but to a more interesting place, IMHO.

    • joe from Lowell says:

      As the latest “Obama scandal” continues to shrink, it is leaving behind some meaningful questions about the structure of the national security state.

      The FISA court is one of them.

      The applicability of the old “outside of the envelope vs. contents” distinction, in light of what modern computing can do with meta data, is another.

      • EH says:

        At its most basic, I think it’s a useful image for the NSA surveillance to think of what they’re getting as “everything *but* voice and names (which are retrievable under the Terry std).”

      • Joe says:

        Yes, the whole third party doctrine w/o more (Smith v. Maryland etc.) also is a question, as Obama’s pick, Sotomayor, noted in a concurring opinion in U.S. v. Jones.

        Thanks Obama.

  9. Marek says:

    Gertner’s wicked smaht. I wish she hadn’t left the bench.

  10. PSP says:

    So we have a drugs exception to the 4th Amendment. And now we have a national security exception. When do the exceptions swallow the rule?

    • BRD says:

      Let’s just have a crime exception to the Fourth Amendment. After all, we can’t those goddamn criminals have the same protection under the law that you or I get.

  11. Loud Liberal says:

    Once again, I object to the misuse of the word “conservative,” in place of the word “republican.” The shills sitting on the FISA Court, and a majority of the federal bench, are not conservatives. They are republicans.

    Once again, as I see it, there are there are only 2 kinds of republicans: (1) idiots, and (2) crooks.

    The crooks are the corporate oligarchs who own everything including the government, every branch (including the judiciary and administrative “captured regulators”), at every level, their pimps in elected office masquerading as representatives, and their propagandists working for their consolidated main stream media.

    The idiots are the conservatives who vote for the pimps in elected office masquerading as representatives.

  12. joe from Lowell says:

    The two options presented to explain the FISA court’s approval rate are 1) the professionalism of those seeking the court orders and 2) the judge’s being terrible, awful people.

    This leaves out a third important point: the law they are applying. The standards that someone coming before the FISA court needs to meet to get an order are much lower than those of an ordinary police officers looking for a search warrant.

  13. montag2 says:

    It’s quite refreshing to find a judge that isn’t all warm and fuzzy about all things national security. I’ll bet she’s got plenty to say about the state secrets privilege….

  14. joel hanes says:

    I’ve always assumed that even the FISA court would, and did, gag on the Administration spying on its domestic political opponents — which is what I’ve always assumed the program that Comey refused to reauthorize was flagrantly doing.

    • Thlayli says:

      This goes under “what do people think they’re doing?”

      NSA: “We need to wiretap John Boehner. National security, you know.”

      FISA judge: “Sounds good to me. Warrant approved.”

      Either that, or they’re taking out warrants on random people for the lulz.

    • Kurzleg says:

      To me, this is the biggest issue. Using these capabilities to get leverage on political opponents or non-elected government officials using compromising info to influence political decisions is a real danger.

  15. Heron says:

    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

    It’s the principle of the think, Scott; the principle. They’re big strong Daddies defending the American Homeland from it’s Foreign(not Christian, not status quo, not white) enemies, and from the traitorous, milque-toast liberals trying to sap the Nation’s Manliness and Power with talk of “Laws” and “Truth” and “Innocence”. What use to they have for courts and deliberation? They have office, they have money, they have The Right, and they lack the scruples to care.

    • Heron says:

      gah! Thing! I’ve been doing that all damn day >:/

    • cpinva says:

      “and they lack the scruples to care.”

      politicians, by definition, lack scruples. it’s not the lack of scruples, it’s the lack of fear of getting caught. they lack this fear, because they know exactly zero will happen to them, if they are caught. they won’t be impeached, and they won’t be tried for criminal acts. what could they possibly have to lose?

      now, if they were to get an unauthorized blowjob, that would be a completely different thing!

  16. [...] Scott Lemieux (h/t) rightly notes, “the rejection rate of the FISA court is so insanely low that it’s reasonable to wonder [...]

  17. Joe says:

    JFL’s comments are on point. Small bright spot in article:

    But according to Timothy Edgar, a top privacy lawyer at the Office of the Director of National Intelligence and the National Security Council under Bush and Obama, it’s not quite as simple as the FISC rubber stamping nearly every application the government puts in front of it.

    The reason so many orders are approved, he said, is that the Justice Department office that manages the process vets the applications rigorously… [S]o getting the order approved by the Justice Department lawyers is perhaps the biggest hurdle to approval. “The culture of that office is very reluctant to get a denial,” he [told the Journal].

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