Look, it’s either this or the whole FBI. Take it or leave it.
Speaking of warrants, I’d like to start seeing judges held accountable for “bad warrants”, the rubber-stamp problem is real.
Speaking of warrants, I’d like to start seeing judges held accountable for “bad warrants”, the rubber-stamp problem is real.
It could be tied to their salary. It could be a 3 strikes policy. Something they care about should be put on the line when they sign a warrant. If they get it wrong and the warrant was frivolous, they lose something. If they get it right, and the search produces exactly what they predicted, then they get something. Judges would very quickly turn away investigators with insufficient evidence. It would also produce some very wealthy judges who would be worthy of their title according to an objective measure. The best judges would be the wealthiest.
Needless to say, they shouldn't be presiding over the trial, which determines whether the warrant produces a guilty verdict.
Good grief, I can think of a variety of ways that this incentive would result in horrific corruption. Judicial impartiality is important and all too easily sullied; for instance, see: https://en.wikipedia.org/wiki/Kids_for_cash_scandal
https://www.npr.org/2023/02/22/1158356619/plea-bargains-crim...
No, they are absolutely not.
At best that's ignoring a lot of nuance, at worst that's just flat-out incorrect.
When a judge signs off on a warrant, they are only saying that they agree with law enforcement that serving the warrant would help move a particular investigation forward, and that the actions they'd need to take to serve the warrant are legally supportable. That's it.
What I'm saying is that the system, as currently designed and implemented, reveals a judge's implicit beliefs, when they sign or veto a warrant. These beliefs paired with the result of a search directly reflect how good their "judgement" really is. And I'm suggesting that we make those beliefs explicit as predictions.
If they are, having their hit track record fully publicly available would help. Not in detail of course, but aggregated by crime type for example.
It will be prone to abuse. But any system/solution will be. The trick is to find the one that is the least affected. Or when it is abused, doesn't come with huge side effects.
The Federal Judiciary is appointed by the President and confirmed by the Senate.
If your suggestion is that we ought to change the constitution, good luck.
No, it (arguably, it doesn't actually do this directly) [0] limits removal from office to the impeachment process. It doesn't prevent judges from being liable for civil or criminal penalties for misconduct without impeachment, and indeed impeachment has been known to be initiated after criminal conviction if a judge for misconduct when the judge stubbornly refuses to resign before that.
[0] the limitation is inferred from the “in good behavior” term of office and the availability of impeachment.
That process does however lead through other judges who have plenty of motivation to find a reasoning that leads to judges being hard to attack civilly or criminally. We already have tons of little loop holes of accountability to sail right through.
If it's real then please provide supporting evidence for that claim.
> FISA warrant requests are rarely denied. During the 25 years from 1979 to 2004, 18,742 warrants were granted, while only four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four rejected requests were all from 2003, and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few were before the year 2000. During the next eight years, from 2004 to 2012, there were over 15,100 additional warrants granted, and another seven being rejected. Over the entire 33-year period, the FISA court granted 33,942 warrants, with only 12 denials – a rejection rate of 0.03 percent of the total requests.[4] This does not include the number of warrants that were modified by the FISA court
"In a following letter Walton stated that the government had revamped 24.4% of its requests in the face of court questions and demands in time from July 1, 2013 to September 30, 2013."
"When [the Government] prepares an application for [a section 215 order, it] first submit[s] to the [FISC] what's called a 'read copy,' which the court staff will review and comment on. [A]nd they will almost invariably come back with questions, concerns, problems that they see. And there is an iterative process back and forth between the Government and the [FISC] to take care of those concerns so that at the end of the day, we're confident that we're presenting something that the [FISC] will approve. That is hardly a rubber stamp. It's rather extensive and serious judicial oversight of this process."
https://www.stanfordlawreview.org/online/is-the-foreign-inte... explains why the final win rate is so high and that it is exactly in line with other ex parte court orders:
"Title III statistics strongly support the basic prediction that a lopsided win rate is a general feature of ex parte proceedings, not a unique characteristic of the FISC. Between 1968 and 2012, state and federal agencies made 50,419 requests for Title III wiretaps, and federal courts approved 99.93% of these requests."
"Ultimately, we should care about the substance of what the court approves, not the frequency with which it does so. And if the substance of what the court does affects how the government selects applications, there’s no reason to think FISC reforms will change the win rate."
That substance is reviewed by Congress.
What needs to happen is that the whole process needs to be made open to the public, as it should always have been. There is no acceptable reason to hide a process like this from the public. Once it is in the public view, we can properly judge whether the requests are truly just being rubber stamped. And, as a bonus, being forced to make these requests public would almost certainly reduce (though likely not eliminate) any extant abuse of this process.
> four were rejected.
If it's a rubber stamp, why are any rejected?
All we know is that they grant 99.98% of the warrants asked-for. That's a massively suspicious rate of approval that is more likely explained by the rubber stamp than careful consideration and evaluation.
Nothing in this world has that kind of success rate without some sort of shenanigans.
Congress does.
> Nothing in this world has that kind of success rate without some sort of shenanigans.
That's your assumption. I have a higher success rate of safely driving to work.
what purpose does the filter serve if it allows virtually all requests through? your response amounts to "trust the FBI, they don't need oversight".
> I think the FBI understands the process and doesn't send flimsy requests in the first place.
I would love to see your evidence for this.
> If it's a rubber stamp, why are any rejected?
because those requests were egregiously bad?
warrant approval is bad across the board, even when the requests are public[1]. what reason do we have to assume they're better when they're sealed? "the FBI is self-regulating" doesn't pass muster when we can see the warrant requests they put forward and get approved when the details are public.
[1]: https://www.popehat.com/2014/07/15/warrants-bulwark-of-liber...
What would you think about a class where 18,742 students passed it and 4 failed it, or a company where 18,742 employees have acceptable performance and 4 are fired?
You think a good process is one where definitionally 50% of the warrants get rejected?
In that case: just file 2x garbage warrant requests so the ones you care about are "correctly" guaranteed to be at the top.
One way to resolve this is to not have secret courts. Then we can judge the merits of these warrant applications in the light of day. If National Security is an issue, then delay the publication of court records by some fixed amount, and require an onerous process to keep the ongoing stuff sealed for those rare cases where it's needed.
But in practice, you or I or anyone else should be able to pull up all the warrants issued in 2016, or 1994, or 2021. We should be able to assess the quality of the supporting PC, we should be able to track the success rate of these searches (How many ultimately went nowhere? What was the FBI focused on in a particular year? Etc.)
All of this is a bare minimum requirement for a free and open society. Instead we get secret courts and a single statistic (99.98% acceptance rate). That's basically the same as a North Korean approval rating, or the electoral performance of a dictator. It's just too perfect to pass muster.
Didn't you just describe a secret court? I don't think these records don't exist or are permanently classified.
We don't need to. Based on what we already know, through years of news, abuse, etc., it is entirely inconceivable that every (or nearly every) single request is the perfect paragon of thoroughness and reasonableness.
> If it's a rubber stamp, why are any rejected?
Because no one actually uses "rubber stamp" to mean that literally every single thing goes by, unquestioned.
I do. That's what it means, after all.
Or it was a duplicate.
To the downvoters - please think about what you're doing by punishing a request for evidence/a source. It does not make for a healthy discussion forum where one can expect to make claims without having to support them, or where asking for that support is seen as an attack. Even if it is an attack, it should not be treated as hostile.