Rubberstamping FISA court can't be expected to actually oversee surveillance

[bwv812]

@Ygret

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:

My comments about FISC judges being Article III judges came in response to a suggestion we simply fire them. (And although we could Constitutionally remove them from FISC without removing them from the federal bench, this would require rewriting the relevant Patriot Act provisions, as they are currently appointed to 7-year terms.)

I then observed that because they are also district judges they also have other duties (which helps explain their concerns about workload), and noted that there were similarities between FISA warrants and regular search warrants which are also rubber stamped. I think that noting these points would aid in understanding the issue.

@Ygret

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.

Search warrant applications are not in open court. Warrants only become challengable if/when the government decides to use the fruits of those warrants in a law-enforcement (as opposed to intelligence) proceeding. If they do not do this, there is no real remedy, with the result that there are plenty of search warrant violations that never even become challengable. Even when it is possible to challenge a warrant, it is still difficult to meet the burden of showing the warrant should not have been granted, as granted warrants are presumptively valid. Heck, I think we’re all familiar with scenes in police procedurals where law-enforcement officers massage their warrant applications and apply to easier judges… and somehow these dubious warrants virtually never come back to bite the prosecutors in the ass.

@Ygret

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.

This is less clear to me. Yes, the number of warrants that have been absolutely declined is small. It’s difficult to compare rejection rates to regular courts because regular courts don’t keep records, but I would be surprised if many regular warrants are ever completely rejected. Problematic warrants are more likely to be re-drafted in order to meet the judge’s standards, and prior FISC judges have said that they have required up to 25% of warrant applications to be redrafted in order to be acceptable. There is also the category of warrant applications that are voluntarily withdrawn.

Actually I have found some data from Article III courts regarding wiretap warrants. In the 11 years from 2002-2012, only 7 warrants out of 23,925 were denied. In the face of this, are you going to claim that Article III courts are less of a rubber stamp?

@Ygret

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.

How is this a better analogy? Has this happened in the FISA context? Is the NSA bringing law enforcement actions? And are you sure the case will be thrown out, instead of simply having the evidence excluded?

Masnick hasn’t really presented how he would like FISA warrant to work, other than to attack the ex parte nature of them. But all warrants are ex parte for good reasons: you don’t want to tip off the parties who are going to be searched/surveilled, and you don’t want to have to disclose to them what you know about them. At a minimum you would need a specialized bar of attorneys allowed to hear the most classified information and sworn to secrecy (including from their clients), which would prevent them from being truly adversarial and likely lead to either capture by the court or accusations thereof. And, as the judge has pointed out in the last section that Masnick quotes, FISC decisions would have to be heavily redacted if they were released, and this redaction would impair the ability of the public to fully understand what’s going on. There are legitimate reasons for secrecy (just are there are legitimate reasons for additional transparency and freedom from surveillance), and unless you are willing to actually address and acknowledge those concerns it’s going to be difficult to make any headway.