FISA Court Argues To Senate That It's Not A Rubber Stamp
from the sometimes-it-requests-changes dept
The FISA Court is still trying to shed its reputation as a rubber stamp. In a new letter, responding to questions from Senator Grassley, the court explains that, while it’s true that it eventually approves basically all requests that the intelligence community brings before the court, that doesn’t take into account the changes it requires. It starts out by noting, as it has previously, that the “over 99%” approval rate is only for “final applications” and doesn’t fairly consider that it frequently asks for substantial changes. In response to that earlier statement, Senator Grassley had asked how many times does it ask for substantial changes, and the court sent back the following late last week:
During the three month period from July 1, 2013 through September 30, 2013, we have observed that 24.4% of matters submitted ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action. This does not include, for example, mere typographical corrections. Although we have every reason to believe that this three month period is typical in terms of the historic rate of modifications, we will continue to collect these statistics for an additional period of time and we will inform you if those data suggest that the recent three months were anomalous.
Of course, by July 1st, it’s pretty clear that the FISC knew that it was going to be under substantial scrutiny concerning these efforts, and the whole “rubber stamp” discussion had already been widespread in the press. While the court insists that this is probably no different than in the past, the real question is what was it in the past… and there, the FISC admits, it has no idea. In responding to the request for historical data, it notes:
FISC [is] just beginning a practice of collecting statistics on the rate at which such modifications occur.
In other words, back before there was any public scrutiny, nobody much bothered to monitor these things and make sure that the FISC wasn’t just a rubber stamp — and there’s no real way to go back and check.
Also, there’s the whole question of how do you define “substantial.” While the FISC at least admits the bar is higher than typographical corrections, it also admits that the rating is somewhat in the eye of the beholder:
It should be noted, however, that these statistics are an attempt to measure the results of what are, typically, informal communications between the branches. Therefore, the determination of exactly when a modification is “substantial,” and whether it was caused solely by the FISC’s intervention, can be a judgment call.