FISA Court Lacks Effective Oversight


The chief judge of the Foreign Intelligence Surveillance Court has admitted to the Washington Post that the court he presides over, which is supposed to be a crucial safeguard against misuse of the government’s surveillance powers, lacks the tools to provide effective oversight.

The chief judge of the Foreign Intelligence Surveillance Court said the court lacks the tools to independently verify how often the government’s surveillance breaks the court’s rules that aim to protect Americans’ privacy. Without taking drastic steps, it also cannot check the veracity of the government’s assertions that the violations its staff members report are unintentional mistakes.

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie B. Walton, said in a written statement to The Washington Post. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”…

The court’s description of its practical limitations contrasts with repeated assurances from the Obama administration and intelligence agency leaders that the court provides central checks and balances on the government’s broad spying efforts. They have said that Americans should feel comfortable that the secret intelligence court provides robust oversight of government surveillance and protects their privacy from rogue intrusions.

But there are other problems as well. This secret court is not a real court because there is no adversarial system. No one represents the Constitution, no one advocates for stronger protections for our privacy and our civil liberties. Only the government presents its case, which goes unchallenged before the judges. That’s pretty much the definition of a kangaroo court.

Comments

  1. wscott says

    in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.

    This jumped out at me…

    This secret court is not a real court because there is no adversarial system…Only the government presents its case, which goes unchallenged before the judges. That’s pretty much the definition of a kangaroo court.

    If they were determining guilt or innocence, I’d agree with you. But how is that any different than going before a judge to get a search warrant, or going to the grand jury for a subpoena? Neither of those are adversarial at that point in the process.
    .
    Not defending FISC by any means; there are many valid criticisms. Just not sure this is one.

  2. says

    @wscott #1 – There are constitutional requirements and centuries of statutory and common law governing search warrants and subpoenas, designed to protect rights and prevent abuses (evidence inappropriately obtained cannot be used at trial, for example, and lying to a grand jury to obtain a subpoena is itself a very serious crime.)

    FISC was carefully designed to sidestep all of these issues.

  3. wscott says

    @ Gregory: Granted. Plus, most judges & grand juries will at least occasionally decline such requests if you don’t have enough evidence, don’t follow proper procedure, etc. It’s the lack of meaningful safeguards that is the problem, not just the absence of an adversary.

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