FISA Court Judges Say They Don't Want Any Changes To How The Rubber Stamp Court Is Run

Legal Issues

from the leave-fisc-alone! dept

Oh, those poor, poor FISA Court (FISC) judges. The court, which has a habit of approving every single request to spy on Americans (though, sometimes asking for minor modifications) has already complained about how unfair it is that everyone thinks they’re just a rubber stamp. And, to be fair, some of the documents that have been revealed have shown that there are a few times that the FISA Court has become quite angry about how the NSA and DOJ have basically lied. And, it’s even ordered certain programs be (temporarily) stopped or changed. But, in the long run, it’s still pretty much allowed the NSA to keep on keeping on. And, the FISC judges have admitted that they’re not particularly able to do real oversight, since they’re entirely reliant on what the NSA tells them. There’s also the fact that all of the FISC judges are appointed by Supreme Court Chief Justice John Roberts, leading to a very specific political leaning in all of them.

And, now, it appears, that the FISC judges are speaking out against any actual reforms or changes to the FISC, because (and I’m not making this up), it might mean they have a bit more work to do. Judge John Bates has sent a letter to Senator Dianne Feinstein basically saying that they’d prefer not to do any more work, and making some crazy claims about how the reforms might “disrupt” the ability of the court to protect national security.

Even if additional financial, personnel, and physical resources were provided, any substantial increase in workload could nonetheless prove disruptive to the Courts’ ability to perform their duties, including responsibilities under FISA and the Constitution to ensure that the privacy interests of United States citizens and others are adequately protected.

Yes, did you get that? Any attempt to better protect the privacy interests of the public — which is what these reforms are designed to do — might actually hinder the FISC’s ability to protect the privacy interests of the public. Talk about doublespeak. First, there’s no evidence that the FISC ever actually protected the privacy interests of the public, and the idea that reforms to protect the privacy interests of the public would somehow undermine the FISC’s ability to protect those privacy interests is laughable.

What about the idea of an advocate for the public in certain cases — someone to make sure that hearings are actually conducted on an adversarial basis? Oh boy, does the FISC hate that idea too:

The participation of a privacy advocate is unnecessary-and could prove counterproductive–in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specified target. Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation. Advocate involvement in run-of-the–mill FISA matters would substantially hamper the work of the Courts without providing any countervailing benefit in terms of privacy protection or otherwise; indeed, such pervasive participation could actually undermine the Courts’ ability to receive complete and accurate information on the matters before them.

Got that? Having an advocate for the public’s interest might mean that the court can’t dig and get as much info as possible, thereby… um… harming the privacy interests of the public. Really?

Oh, and if there must be an “advocate” for the public, he or she should apparently be really designed to help the judges rather than an independent voice for the public interest:

In those matters in which an outside voice could be helpful, it is critical that the participation of an advocate be structured in a manner that maximizes assistance to the Courts and minimizes disruption to their work. An advocate appointed at the discretion of the Courts is likely to be helpful, whereas a standing advocate with independent authority to intervene at will could actually be counterproductive.

Okay, how about requiring the FISC to actually review national security letters (NSLs), instead of just allowing the FBI and others to issue them willy-nilly with no oversight, despite long standing evidence of massive abuses on an astounding scale? Again, too much work:

Drastically expanding the FISC’s caseload by assigning to it in excess of 20,000 administrative subpoena-type cases NSLS) per year — even with a corresponding injection of resources and personnel — would fundamentally transform the nature of the FISC to the detriment of its current responsibilities.

The plan to change how the judges are appointed, so that it’s no longer a court shaped in the vision of Justice John Roberts exclusively? No dice, says Judge Bates.

It is important that the process for selection of FISC and Court of Review judges remain both expeditious and fully confidential; the Chief Justice is uniquely positioned to select qualified judges for those Courts.

He doesn’t explain why any of that makes sense. There’s no reason why FISC judges can’t be approved in a more diverse manner. Yes, the Senate has certainly made judicial nomination approvals a political football lately, but appointing already approved judges to FISC can certainly be done by Congress rather than by a single guy appointed to a lifetime position.

What about more transparency on when the FISC rules on things? Oh no, says Judge Bates, actually telling the public about what the FISC rules might confuse those stupid idiotic people who make up the public:

In many cases, public disclosure of Court decisions is not likely to enhance the public’s understanding of FISA implementation if the discussion of classified information within those opinions is withheld. Releasing freestanding summaries of Court opinions is likely to promote confusion and misunderstanding.

There you have it: let’s keep important court rulings secret, because the public are morons. Brought to you by the former chief judge of FISC.

Given that the FISC has taken a lot of the attacks for its weak to non-existent oversight of the NSA, it’s no surprise that they’re a little touchy about all of this, including the idea that some reforms might suggest that they really did an incredibly crappy job for the past decade or more. But the reasoning given in this letter amounts to little more than (1) we don’t want to do any more work, even if you let us hire a lot more people and (2) the public is stupid and annoying, please keep us shielded from them.

Filed Under: dianne feinstein, fisa court, fisc, john bates, nsa, privacy, public interest, surveillance