America’s FISA court names five lawyers as public advocates
arstechnica.com
arstechnica.com
Let's be clear. These are friends of the court, not any kind of advocates. They work for the court. They are not adversaries to the executive.
What, for example, will happen if the court systematically ignores them? Can they go to the media? What can they do but resign? That will make the nightly news and be forgotten by morning.
This creature is called a "court," but, lacking adversarial advocates it's wholly an instrument of the executive branch. Adding some friends with impressive resumes does not change that.
It's staffed with Article III federal judges who are appointed by the Chief Justice, which makes its construction about as far from the executive branch as you can get.
It oversees the NSA and CIA, which are controlled by the executive branch, and has no authority to hear cases. It hears only matters regarding foreign intelligence, which puts its subjects outside the protection of the Constitution, which protections are most of the point of Article III courts. It is in that sense so difference from Article III courts as to make it a little unclear whether it is one.
And it was created by Congress, as a way of delegating rulemaking about surveillance that was properly owed by Congress --- the FISA process was a way for the 1970s Congress to punt on the issue. Unlike other courts, Congress can abolish FISA tomorrow and replace it with a set of rules. It is in that sense entirely a creature of Congress.
The FISC is weird, is what I'm saying.
Is that where it stops? I wonder, do FBI agents discuss details of it's FISC cases with, for instance, NSA agents? And can the FBI, for instance, obtain details of a FISC case brought by, for instance, the NSA?
I dislike FISA as much as anyone, but I'm glad to hear the EFF is impressed with the attorneys. While the article is silent on their recourse if they are ignored, surely they can appeal to whoever in the administration did the hard work to get them there. Given their credentials, you can be sure there was a lot of opposition to this.
"In the court’s history, warrants (and related orders) are approved more than 99 percent of the time."
Quite the appearance for judges who are not rubber stamping.
1. Perhaps FISA really does rubber-stamp all requests.
2. Perhaps NSA really is surveilling almost solely targets of real security interest.
3. Perhaps the FISA process and the documentation it generates forces NSA to be overly conservative about surveilling targets, to the detriment of security.
4. Perhaps NSA only uses the FISA process for targets of real security interest, and uses some other process for other targets.
In fact, a 50/50 success rate at FISC would be disturbing for other reasons: it would imply that the USG was aggressively targeting people of no security interest, and only the FISC process was preventing that from happening.
"Perhaps" is no longer enough to sway me. Apart from the reason already given, we the west are still suffering terrorist attacks, making the NSA (and GCHQ et. al.) wasted money.
The "period of time" needs to be short - in the 12-to-24 month range, rather than the 50-100 year range.
Maybe a model statute that required the USG to (a) declare its surveillance objectives publicly (it's no secret that we're after AQ and ISIS, nor should the USG get to be secretive about its broad objectives) and (b) limit use of the FISC process to targets operationally relevant to those objectives.
But while I would be happier with that kind of transparency, I think people actually involved with surveillance would say it's just window dressing, because the totality of the FISC process and the 2001 and 2003 AUMFs has the same effect.
Why indeed can't everything be open and transparent with the People's government?
What do we really need to fear if our government's actions are ALL in the open?
As an aside, I'd imagine that in previous days without these public advocates, the government would have bent over backwards in choosing submissions judiciously, to guard against the obvious perception that the court was being abused. But now perceptions are different, and they can (from a PR standpoint) afford a very small amount of fighting with the public advocates. So maybe now they'll push the envelope a very slight bit, see where the boundaries are.
Not sure I believe that story, and even if it's true it's not a great idea to rely on the innate moral fiber of the judges, but that stat is not necessarily a smoking gun.
The problem with the FISA court is that it lacks oversight provided by publicly-readable appeals. This, legal scholars have no way to debate if warrants are valid or invalid.
It's outrageously difficult for US citizens to bring a case against illegal or questionably-legal domestic use of our foreign intelligence gathering programs, tools, and/or assets.