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The FISA Court: Not a Meaningful Check

[ 29 ] July 8, 2013 |

Eric Lichtblau has a major story about the expansions of the surveillance state the court designed to check it has facilitated:

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Please read the whole thing. This is also worth noting:

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.

It’s common for observers to overstate the power of the Chief Justice; the power of a Chief to shape the jurisprudence of the contemporary Court just isn’t all that great. Having the power to appoint members to a secret court — and using these appointments to ensure that it doesn’t actually check the executive branch in any meaningful way — is on the other hand a real power. One he really shouldn’t have.

Comments (29)

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  1. joe from Lowell says:

    What jumped out at me isn’t the court not acting as a check on the executive, but the judiciary itself not being subject to checks and balances.

    Here we have a court creating case law, and it is being staffed by the Chief Justice alone. Every other judge in the federal system needs to be approved (selected, actually) by the President and by the Senate – checked by both of the other branches – but here we have the judiciary checked by no other branch. The secrecy component means that Congress is restrained from being able to react to its rulings legislatively.

    • wengler says:

      It’s OK. If the executive has thought to itself that even this highly authoritarian judicial check is unnecessary, they can always go to Congress for retroactive immunity. Congress of course is checked by lobbyists and state Republican district drawing committees.

    • Lefty68 says:

      Not exactly. Article III judges have to be nominated by the president and confirmed by the Senate and serve life terms. Judges on Article I courts, such as bankruptcy courts, can be appointed by different methods and serve limited terms. If anything, an Article I judge should be more accountable since he or she is subject to reappointment, but there’s no way that could work if everything the FISA judges do is double-super-secret and you have a hack like John Roberts picking them.

    • rea says:

      Well, note that the Chief Justice only assigns these judges for service on the FISA court–they are alreeady Art. III judges who have been appointed by the president and confirmed by the Senate.

      • joe from Lowell says:

        Still, though, when a federal district court judge gets appointed to another court, such as the circuit courts, that judge is picked by the President and approved by the Senate.

        • rea says:

          Bt it’s not, technically, a matter of appointing the judge to another court. The FISA court is a US dstrict court. The judge continues to have a case load in his home district. It’s more like when you send a Michigan judge down to Florida to help cover a large case load.

  2. Murc says:

    In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law

    No. It hasn’t.

    I’m prepared to both make and defend the assertion that secret laws aren’t laws in any meaningful way.

    What the FISA court is doing has many names, but it can’t meaningfully be said to be creating caselaw and precedent if it’s caselaw and precedent nobody knows about. That strikes at the very heart of our concept of law and order and I reject it’s legitimacy.

    • DocAmazing says:

      You might reject its legitimacy, but the guys with guns and keys to cells accept it just fine.

    • LosGatosCA says:

      LMAO. That’s funny.

      Clear case of regulatory capture, just not the type we are accustomed to.

      What’s disappointing is that I definitely expected more from federal circuit judges and members of the US Supreme Court but . . . .

      ever since Rehnquist put on those silly stripes, they let Paula Jones lawsuit against Clinton go forward, Bush’s selection, and the Citizen’s United ruling its pretty clear that the judiciary is a con on the American public.

      It’s more sophisticated than the average con, but it’s a con, nonetheless.

      Here’s a concept I learned as a trainee at GE about corporate policies, that I think has effectively replaced the concept of ‘rule of law’ in America:

      “Here is our list of excuses (rules, laws, policies) that we must apply religiously for people who are not connected. For our ‘friends,’ however, we can do anything.” (Full disclosure: I learned this as a beneficiary, not a victim)

      Personally, as I read TNC’s post from Paris, I think his description as the game/system being ‘rigged’ was in this same vein. Now that he’s a ‘friend’, he’s amazed how easy and free the network bends to accommodate him, when before it was rigid and impersonal.

  3. montag2 says:

    Funny thing about FISA. It’s not a court in any meaningful sense, because it does not admit adversarial proceedings–the only participants are the government and the judges–and since the very largest number of its rulings are classified, there’s no real way to use the normal court system as a check on it. (Indeed, many of its current members have effectively deferred to the government and claims of state secrets privilege when adjudicating cases in their more public roles. While Reggie Walton is most often cited as the judge presiding over the case against Scooter Libby, it’s noted much less frequently that he deferred to the government’s claim of state secrets privilege in the wrongful termination suit of Sibel Edmonds, not even allowing Edmonds’ lawyers to hear the government’s arguments.)

    And then there’s Roger Vinson, who got the ball rolling on the nature of the FISA court by issuing an order okaying wholesale trawling for data by the NSA (which we wouldn’t have known about at all were it not for Ed Snowden). Vinson’s a piece of work, by any standard, and there’s been little talk of what particular attributes he possessed that qualified him for that bench, apart from being bugfuck nuts in a way that pleased John Roberts.

    The FISA court may have been a good idea in theory, but there are no limits on how it can be perverted by the authoritarians in practice if they choose to do so, and it looks as if they have done exactly that. If Congress were serious about fixing the problem–and it isn’t–the issues of secrecy and of interests adversarial to the government’s will have to be fixed. Right now, that court looks a lot more like a rubber stamp for The Law According to John Yoo than it does an Article III institution.

    • joe from Lowell says:

      Are there any courts in which search warrant requests involve adversarial proceedings?

      • Barry says:

        At the time of issuance of warrant, no, but later things can be appealed. And if nothing else, things are publicly known.

        • joe from Lowell says:

          but later things can be appealed

          “Later,” meaning “during a criminal trial, or pre-trial hearings in the criminal case,” correct?

          Is everything found as a result of a FISA warrant admissible in court if the subject is later charged?

      • montag2 says:

        Umm, they do require that old bugaboo, probable cause, and while that concept is more elastic than it should be, it’s still the standard. FISA, in the instances we know about, has pretty much shredded that standard in an effort to be reasonable about the government’s evidence. Beyond that, all non-security state search warrants are subject to review in open court, if the warrant is used to obtain evidence used at trial. If the warrant has been obtained by questionable affidavit or by a judge exceeding Constitutional authority, the evidence from it can be challenged. No such mechanism exists with a FISA warrant, because secrecy.

        Beyond that, what the FISA court is doing is making rulings on the law itself which are not subject to review, at least not under ordinary circumstances (i.e., until we find out about it through leaks). That’s a lot closer to Star Chamber methods than an Article III court, as I suggested.

        • joe from Lowell says:

          So the answer to my question is, “No.”

          It’s ok. You can just answer the question. Not everything you write has to be an exercise in selling me something.

      • Dilan Esper says:

        Also, you find out when they do the search. They have to post a notice. And if they search you illegally, (1) the evidence that they recover as well as any fruits from that evidence become unusable in any criminal action, and (2) you can file a Section 1983 or Bivens action for pretty significant damages if you can prove the search was illegal and violated clearly established law. Those two things create huge deterrents to magistrates approving illegal searches.

        In contrast, with FISA, the target of the search is never notified, there’s usually no criminal proceeding, the fruits can effectively be used (because the government doesn’t have to disclose they got the fruits from a FISA search), and nobody’s successfully filed a Bivens action.

        Which means that there is no incentive whatsoever for the government to follow the law. Which is why they issue rulings saying they can look at everything and create “minimization” procedures that allow them to keep just about anything interesting that they collect.

        • L2P says:

          “Also, you find out when they do the search. They have to post a notice.”

          I don’t think that’s always true. If something is seized the executor has to provide a receipt, and usually returns on warrants are eventually public records of the court.

          But often there’s nothing to post a notice of. A tracking warrant, for example. In any event business records warrants (which are most like these FISA warrants) often require notice to the business, not the subject of the investigation.

      • L2P says:

        At times. Warrants for medical records or accounting records or some similar things often have requirements for notice and hearing prior to execution.

  4. Joe says:

    Reference is made to the one sided nature of obtaining warrants, but the key to the article is this change:

    The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

    A “Supreme Court” has various things going for it, including competing advocates in open court in front of judges appointed by more than one guy [not sure how much this matters, but it does matter some] with appeals coming from various circuits.

    I would note at least one thing that is a bit off — the “special needs” doctrine was not “originally established in 1989″ but earlier, including in cases like NJ v. TLO (school safety). FWIW, Prof. Orin Kerr also discusses the article over at his blog.

    • rea says:

      Frankly, I’m not sure the artticle makes sense. What would be the occasion for the FISA court to rule that no warrant ws required? Did the government come to them asking for a warrant, only to have the court refuse a warrant on the groudns that no warrant was required?

  5. Calming Influence says:

    More to the point of the actual effectiveness of these massive data mining operations, this really struck me:

    “…but also people possibly involved in nuclear proliferation,…”
    Now that is one really tiny needle in one huge fucking haystack. I’d really love to know what search algorithms they’re using for this.

    [PULLED FROM ALL U.S. EMAIL: "Hey Bob, I'm heading over to North Korea tomorrow to drop off some enriched plutonium. Can I pick you up anything?"]

  6. Icarus Wright says:

    Ezra’s article (which I read this morning) left me almost speechless:

    A Reuters investigation found that from 2001 to 2012, FISA judges approved 20,909 surveillance and property search warrants while rejecting only 10. Almost 1,000 of the approved requests required modification, and 26 were withdrawn by the government before a ruling. That’s a startling win rate for the government.

    Perhaps the federal government is simply very judicious in invoking its surveillance authority. But it’s also possible that empowering the chief justice — especially one with an expansive view of state police powers — to appoint every FISA judge has led to a tilted court. That’s probable even if the chief justice has been conscientious in his selections.

    Harvard Law School professor and Bloomberg View columnist Cass R. Sunstein has found that judges are more ideologically rigid when their fellow judges are from the same party, and more moderate when fellow judges are from the other party. “Federal judges (no less than the rest of us) are subject to group polarization,” he wrote.

    The FISA court is composed of federal judges. All are appointed by the same man. All but one hail from the same political party. And unlike judges in normal courts, FISA judges don’t hear opposing testimony or feel pressure from colleagues or the public to moderate their rulings. Under these circumstances, group polarization is almost a certainty. “There’s the real possibility that these judges become more extreme over time, even when they had only a mild bias to begin with,” Cato’s Sanchez said.

    Nothing could go wrong here, etc.

    • L2P says:

      It’s a limited sample size, but the only time I’ve ever seen a judge not sign off on a warrant is on Law and Order. Does anybody know how often judges deny warrants? Has anybody done a study or anything? I’m curious how uncommon FISA’s rubberstamping is.

      • rea says:

        First of all, if you are competnent, you don’t seeka warrant unless you meet the technical requirements for getting one. It is extremely rare for a judge to deny a warrant request, in aprt for tht reason. When you find a thousand being modified and 36 being withdrawn or rejected, that show to me that the FISC is taking its review function very seriously.

        • L2P says:

          The technical requirements for getting a warrant generally are 1. A cop signs an affidavit. 2. That’s it. I think you have a VERY inflated idea of what goes into warrant affidavits. I’ve seen a warrant issued based on “I saw three visitors arrive and stay less than 5 minutes each during a 24 hour period, which is consistent with drug sales in my experience as an officer.” I saw a warrant issued based on “The drug dealer is rumored to have a brown truck, and [this truck] is black which is very close to the description, and so in my expert experience as a narcotics officer I have reason to believe narcotics are in the cab of the truck.” Those are almost word for word the affidavits. For the love of gawd, I’ve seen a judge rewrite an affidavit for the officer to sign. I can’t IMAGINE that FISA is working on less than that.

          So yeah, given the crap warrants I see “normal” courts issue I’m kind of curious how FISA stacks up. Do they reject fewer? About the same? I’m curious.

          • rea says:

            I think you have a VERY inflated idea of what goes into warrant affidavits.

            I do a fair amount of criiminal defense work.

      • Icarus Wright says:

        Again…

        A Reuters investigation found that from 2001 to 2012, FISA judges approved 20,909 surveillance and property search warrants while rejecting only 10. Almost 1,000 of the approved requests required modification, and 26 were withdrawn by the government before a ruling.

        bonus Law & Order reference …from 2004.

  7. [...] selected unilaterally by Chief Justice Roberts, who has packed the pseudo-court with conservative Republicans. Democratic judges are much more likely than Democrats in Congress or the White House to push back [...]

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