Your entire comment relies on the assertion of similarity between the FISA court and district court; and that district court judges sit on the FISC. This alleged similarity is the basis for your rather vague accusation:
Your conceit, that Masnick is being disingenuous by presenting the ex parte functions of the FISA court as substantially different from what goes on in a regular district court, attempts to isolate the issue from its context, and from the abuses that have occurred as a direct result of that context. The fact that its a secret court nullifies any attempt to equate the FISC with, e.g., the Southern District of New York.
Sure district courts hear warrant applications in ex parte fashion. But their proceedings are generally public and are verifiable, at least at some point once an action has been started (grand juries may have sealed proceedings, at least until arrests are made). That’s why the people don’t need an advocate at the proceedings: because their advocate will get to review the warrant for legality and challenge it during the rest of the proceedings (i.e., the trial). There is no trial in FISA court. There is no review. We all get spied on with no recourse to the law. Secret law is not law. Its an oxymoron. Law by its very nature is public and political. As we have seen, the FISA court reliably approves almost everything the NSA throws at them, letting abuses continue for years, perhaps occasionally protesting, all in secret of course, and with no discernible effect on the NSA’s privacy efforts. This brief glimpse we are getting of the FISA court’s inner workings is unprecedented, and clearly proves that a secret court is no court at all. Think about it: what prosecutor in district court would be reprimanded and ordered to change an abusive or corrupt behavior, only to have the prosecutor ignore them and continue on with the same behaviors, year after year.
An even better analogy: imagine a prosecutor who is refused a warrant, but tells the police to make the search anyway. That case will be thrown out before trial for an illegal search. If the FISA court denies a warrant who can tell whether the NSA is even complying?
