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

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.

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

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kenichi tanaka (profile) says:

Did I read that right? The FISA court is saying that allowing an advocate to argue against the approval of a warrant would actually impede the government’s ability and the court’s ability to do its job?

Either I’m in the wrong country or the United States has officially turned into a communist dictator state.

That’s like saying we cannot allow a defendent to have an attorney because the prosecutor would be hindered in its prosecution of a defendent.

Anonymous Coward says:

Wait – is he saying the job of the FISA court is to ensure “national security”? I thought their job as a damn COURT was to make sure the NSA isn’t overstepping its limits. That’s why we generally have Courts give approve warrants, right?

This reaction makes me more certain than ever that all the rubber-stamping of the court was completely on PURPOSE, and it was never really about “being misled by the NSA”. They knew exactly what they were doing. And now that people want to see some real oversight into that whole operation, they’re starting to oppose it.

Ninja (profile) says:

Re: Re:

I think national security has some very interesting meanings depending on where it is used. What he means is that the current rubberstamp process allows law enforcement to effectively take care of “national security” (don’t laugh). Still I fully agree with you, they shouldn’t even care, all they should care is that the Constitution and the laws are being followed.

Anonymous Coward says:

What is not to like about this. We have unknown judges issuing secret rulings about unknown events in hidden locations not subject to public viewing sanctifying covert activity occurring in nameless locations using stealth resources to perform off the books actions which are reviewed by clandestine administrators not subject to overt existence.

Damn the Stasi and NKVD rolling in their graves wandering how they failed to get in on the action.

That One Guy (profile) says:

Yeah, if they’re going to claim a ‘public advocate’ would be ‘detrimental’ to their job, that’s pretty much a flat out admission that they don’t see their job as providing a check on the NSA, limiting their powers and making sure they don’t break the laws, but rather okaying whatever is put in front of them and merely making it look like ‘effective oversight’ is in place.

Being able to hear arguments from both sides before making a judgement would in no way be detrimental to proper justice, but it would however be rather ‘inconvenient’ if the decision was already made ahead of time, and they were just going through the motions to collect their pay.

Anonymous Coward says:

It seems nothing short of astounding that a letter from a respected member of the federal judiciary should be so roundly dismissed and mocked by persons having not a clue what responsibilities the judges assigned to the court (all of whom, by the way, are known to the public) entail and that which is needed for them to carry out their responsibilities.

That One Guy (profile) says:

Re: About that...

Yeah, ‘respected member of the federal judiciary’… the problem is their actions, and therefor the people performing them, aren’t ‘respectable’.

They haven’t been in the past, and they continue to fail to be so now, when they describe how ‘terrible’ it would be if both sides were able to be heard before a judgement or ruling was handed out, how having to pay attention to protect the privacy rights of citizens would get in the way of… ‘protecting’ the privacy rights of citizens, and how a ‘public advocate’ would only get in the way, unless they were there solely to help the judges, rather than the public.

People will stop dismissing and mocking them when they stop making it so easy.

Anonymous Coward says:

Re: Re: About that...

“Yeah, ‘respected member of the federal judiciary’… the problem is their actions, and therefor the people performing them, aren’t ‘respectable’.”

This comment reflects on you an intellectual laziness to learn just what role the judiciary plays in our republic and how it integrates with those of the executive and legislative branches. Learn what they actually have to do before concluding that they are doing it wrong, wrong, wrong. I certainly know nothing about you and how you bring home the bacon, but based upon your comment I can only assume that how you go about doing your job and the results you achieve are wrong, wrong, wrong. Of course I refuse to do anything of the sort because I know nothing of your work, your responsibilities, the tools with which you are provide to carry out your responsibilities, etc. I do suspect that if someone tells you that you have to assume additional responsibilities that may impact your current ones and will require additional sets of tools to add to your toolbox, you probably have a fairly good grasp of what that would entail. Perhaps the judge understands what he needs as well.

John Fenderson (profile) says:

Re: Re: Re: About that...

Most of the regular commenters here have a very solid understanding on the role of the judiciary. The issue is that we’re not talking about a normal court. We’re talking about the FISC — a court which has demonstrated repeatedly that it is little more than a rubber-stamp body.

The reason we need an advocate in the court is precisely because the court has repeatedly demonstrated that it cannot be trusted. An even better solution would be to get rid of it entirely and deal with these issues in the normal court system, but that seems politically unattainable at this point in time.

Anonymous Coward says:

Re: Re: Re:2 About that...

Most of the regular commenters here have a very solid understanding on the role of the judiciary.

Solid? Maybe, in an “I took civics in high school sort of way”. Solid? Even a casual perusal of comments to TD articles involving the role of the judiciary demonstrates otherwise. This article is but one of many examples.

It is important to understand I am not suggesting that commenters are not insightful, but only that opinions based upon an inaccurate understanding of the role of the judiciary or the outcome of a specific case do not promote informed discourse.

Pragmatic says:

Re: Re:

Let me put this in terms you understand, AC:

FISC is supposed to provide OVERSIGHT, that is,

“the action of overseeing something.”
“effective oversight of the financial reporting process”
synonyms: supervision, surveillance, superintendence, inspection, charge, care, administration, management, government, direction, control, command, handling, custody

per the Google dictionary.

It doesn’t, unless it’s taking the primary definition and applying that:

“an unintentional failure to notice or do something.”
“he had simply missed Parsons out by an oversight”
synonyms: mistake, error, fault, failure, omission, lapse, inaccuracy, slip, blunder, faux pas, miscalculation;

Except that this failure to notice or do something appears to be deliberate.

So no, he’s not only NOT doing his job, he’s saying that he doesn’t want to. That, my friend, is the problem.

Anonymous Coward says:

Re: Re: Re:

I do not have unfettered access to everything the judges are presented for judicial action. Apparently you do since you manifest an almost overwhelming conviction that they are sitting on their thumbs and ignoring their roles as members of the judiciary. This seems to apply with equal facility to their workload, the tools needed to keep up with that workload, etc. Perhaps the court should sponsor a “shadow a judge day”, much like a take you son/daughter to work day, so that if selected you might actually gain an understanding of what the members of the court actually do, how they do it, and what do they need to do it.

It is not the courts role to provide “oversight” unless you are using that term to generally describe the role of every member of the judiciary, federal and state. Courts are forums, including this court, that generally ascertain legally relevant facts and apply applicable rules of law. They do not pass upon the wisdom of laws or rewrite laws to suit their preferences. That is something to be done within the other branches of government, because for courts to assume those roles would represent a usurpation of powers conferred to the legislative and executive branches of government, what we refer to as separation of powers.

John Fenderson (profile) says:

Re: Re: Re: Re:

It is not the courts role to provide “oversight”

it is specifically and explicitly the role of the FISC to provide oversight. That’s the entire reason it was formed. Perhaps what you’re failing to understand is that the FISC is not a normal court. It was specially made to provide oversight as a result of the last time the intelligence community got out of control and abusive.

Anonymous Coward says:

Re: Re: Re:2 Re:

Did you even read my comment about “oversight”?

Courts receive facts (documents, testimony, demonstrative evidence, etc.), apply the law to the facts, and then render opinions. Courts do not conduct independent investigation as you seem to imply is a responsibility of the court.

FISC is different from courts of general jurisdiction, but it is a US court nevertheless and functions in the same way, i.e., judges doing those things that every other federal judge does. The difference? Most of its work is done behind closed doors because the information with which is must work is classified. Heck, even in ordinary courtroom settings the receipt and consideration of classified information is done behind closed doors.

John Fenderson (profile) says:

Re: Re: Re:3 Re:

Courts do not conduct independent investigation as you seem to imply is a responsibility of the court.

I meant no such implication. And this is one of the HUGE problems with the FISC, a big part of what makes it a rubber-stamp court, and why, at a minimum, some kind of adversarial presence is required. So there can be something like an actual investigation.

By the court’s own admission, they rely entirely on what the NSA (et al) tells them to make their determinations. This means that their overt role as an oversight mechanism is just a bad joke.

Jasmine Charter (user link) says:

I would...

If I had a nice cushy job where I just sat back and said yes all the time, except for the few times in the last 10 years when I needed to say no just to make it look like I was “impartial”, I wouldn’t want any changes either! God forbid they have to do ACTUAL work… and consider ACTUAL facts and rights… not just the stuff that’s spoon feed to them from the government.

The sad thing is… they don’t even CARE about the appearance that they are partial anymore…

That One Guy (profile) says:

Re: Re: I would...

I’m curious, exactly how much work do you think it takes to stamp ‘APPROVED’ on pretty much every single document that is presented to you, and not even have to bother with independent investigations, since the person/agency handing you the document is also where you get your information from?

Anonymous Coward says:

Re: Re: Re: I would...

And you know approving requests for warrants and the like is pretty much all the court does because…?

BTW, and merely FYI, every request for a warrant must be reviewed by a judge in detail for compliance with the applicable rules of law before it can be signed, TVs shows to the contrary notwithstanding. It is also useful to note that the vast majority of such requests recite almost identical facts because the acts of concern from case to case are virtually identical, and that after an extended period of time it is not at all unexpected that at least this part of the court’s responsibilities proceeds at a more rapid pace.

Anonymous Coward says:

Here is one location I recommend, which happens to be a Wiki, to garner information about the court and its appellate arm.


You will note mention is made about the rarity associated with warrants not being granted, and a discussion that helps explain why this is so. I believe it fair to say that an agency does not simply show up at the court’s door, say “I need this warrant”, and then have a judge simply rubberstamp it, as many seem to think is the case.

John Fenderson (profile) says:

Re: Re:

Thank you. Regular readers here are well aware of all that (we’ve been discussing it for a long while now), but it never hurts to refresh.

I believe it fair to say that an agency does not simply show up at the court’s door, say “I need this warrant”, and then have a judge simply rubberstamp it, as many seem to think is the case.

Nobody is claiming that there isn’t a process that is gone through before the rubber stamp is applied. This is the government, after all, so red tape is mandatory.

The thing that makes them a rubber stamp court is that they aren’t acting as impartial judges. They are actively working with the NSA (and other agencies) to help them figure out a way to accomplish what they want to do while remaining within the law (as the FISC interprets the law).

That is not what a court should be doing, and in doing so they give up even the appearance of impartiality, and therefore rightfully earn their reputation as a rubber-stamp court.

Or, if you don’t like “rubber stamp,” how about “kangaroo?”

John Fenderson (profile) says:

Re: Re:

It’s already been provided by the court itself, as reported by just about every news organization, when it explained why the fact that they’ve approved almost every request doesn’t mean their a rubber stamp court.

Their explanation was that there is a lot of back-and-forth. The NSA wants to do ‘x’. The FISC says no, doing it that way would be illegal. Do it this way instead. The NSA adjusts their proposal and boom, approval. The court is actively helping to find ways to do things that are, at best, marginally legal.

That isn’t acting like an oversight body. That’s acting like a legal advisor. That is the court not being impartial.

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