US must fix secret Fisa courts, says top judge who granted surveillance orders

[kpete]

Source: Guardian

US must fix secret Fisa courts, says top judge who granted surveillance orders
James Robertson breaks ranks and says he was shocked to hear of changes to allow broader authorisation of NSA programs


James Robertson, who retired from the District of Columbia circuit in 2010, was one of a select group of judges who presided over the so-called Fisa courts, set up under the Foreign Intelligence Surveillance Act, which are intended to provide legal oversight and protect against unnecessary privacy intrusions.

But he says he was shocked to hear of recent changes to allow more sweeping authorisations of programmes such as the gathering of US phone records, and called for a reform of the system to allow counter-arguments to be heard.

................

"A judge has to hear both sides of a case before deciding," he told members of a Privacy and Civil Liberties Oversight Board (PCLOB) recently appointed by President Obama.

"What Fisa does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but the 2008 amendment has turned the Fisa court into administrative agency making rules for others to follow." "It is not the bailiwick of judges to make policy," he added.


Read more: http://www.guardian.co.uk/law/2013/jul/09/fisa-courts-judge-nsa-surveillance

[bemildred]

1. This is the fundamental problem, the process is NOT adversarial. nt

[RiverNoord]

2. The problem isn't that it's not adversarial...

the granting of warrants is not adversarial, by necessity. The problem is that it is secret. There is absolutely no accountability. Apparently, no FISA judge has ever denied a government request. It's a farce, that, since it is secret, will continue to be a farce for as long as it exists.

[cstanleytech]

3. No, the problem isnt the secrecy either but rather with the lack of oversight.

Personally I think the appointment of the judges to the court shouldnt be made by the chief justice but rather let congress and the senate appoint 4 judges each who serve a single 7 year term and let the whitehouse appoint 5 judges for a single 7 year term and the Chief Justice and the rest of the SCOTUS periodically audit their cases every 6 months to a year and let the SCOTUS have the ability to remove a FISA judge with a majority vote of SCOTUS for any reason.
That way we have some checks and balances in place.

[1StrongBlackMan]

10. Agreed. n/t

[RiverNoord]

19. OK... you're not describing real oversight

and the SCOTUS would never accept such a delegation of the duty of 'auditing' the cases, as they would not represent a 'case or controversy,' which is the prerequisite to any action taken by the Court as a whole. I'm surprised that the Chief Justice, even the present pro-surveillance one that we have at present, accepted the delegation of the responsibility to unilaterally appoint FISA judges. It goes against all prior jurisprudence on the subject of the role of the Supreme Court in our system.

Would you propose that the 'auditing' by whatever body was granted the role result in public reports? Would the reports ever notify anyone that they were the subject of a constitutionally or legally deficient FISA warrant, so that the party could directly seek to vindicate his or her 4th Amendment rights? Monetary damages or criminal penalties for faulty warrants? Without these elements, no oversight would be remotely valuable - we'd just have a slightly larger number of people in on the secret, and there would be no preventative effect on either the judges issuing the warrants or the individuals seeking them.

[Igel]

21. The Chief Justice of the SCOTUS is a special position.

He isn't just the Chief Justice of the supreme court.

He is the Chief Justice of the United States. For example, it is his duty to request any pay raises for federal courts. It is his job to write a report assessing how the federal judiciary meets its requirements.

Just as Obama is the source of all executive power because he is the head of the executive branch, so (mut. mut.) Roberts is the source of all judicial power because he is the head of the judicial branch. Similarly the Congress has two parts, each with a chair in charge of that particular (sub) branch, but when they come together for joint sessions there is but a single person in charge.

It's fairly expected that if you have an appointed set of judges within the federal judiciary as a whole that it should fall to the chief justice or somebody he appoints.

[davidpdx]

26. I think dividing up the appointment of the FISA judges would be a good idea

I'd go one further and say that the Senate has to appoint 2 liberals and 2 conservatives, the White House can appoint 3 from their own party, but has to pick 2 from the other party. That would allow a balance on the FISA court. I think staggered terms of a single six year term with 3 judges being reappointed every three years. As for reviews, let the US District Court of Appeals do it.

[bemildred]

5. It does not seem to me that we disagree.

The granting of warrants should be adversarial, that is the import of the 4th amendment. It may not be the prospective searchee, but somebody should represent the interests of both the intended searchee in the process, as well as the public's interest in constraint of police powers. Most of all it should be easy to sue them when they overstep, and to win when you do. As you say, without accountability you have nothing, and right now there is clearly diddly-squat in the way of accountability.

[JDPriestly]

7. If the government or a private non-profit appoints someone to represent the adversaries

to warrants, the system remains subject to corruption.

The person who appoints the adversary can control the adversary role and water the system down until there is no real adversary but merely the appearance of an adversary.

We need openness. The papers concerning the issuance of warrants should be required to be published or made available to the public within, say, six months or 1 year of the issuance of the warrant.

The purpose of warrants is to facilitate an investigation. The investigating authorities should have maybe six months to a year in which they are to complete their FISA court investigations -- no longer.

We are not even supposed, under our Constitution, to have a standing army without congressional review of its budget every couple of years. Our military and our Congress have set that limitation aside by automatically passing military budgets every couple of years.

With warrants, the warrants should be reissued. Remember, the FISA court is supposed to give these special warrants for the purposes of insuring national security. Six months to a year is, in my opinion, long enough for a warrant to be secret. If the government wants to snoop on someone's records for over a year, the person on whom they are snooping should be able to go to court and ask for evidence of probable cause for the searches.

For all we know, organizations like the ACLU or Electronic Frontier may be under permanent surveillance just because they defend our rights.

We citizens have a right to know. It's OK to keep military secrets, but the 4th Amendment as well as the First and Fifth Amendments were written to make sure that military secrets are not the excuse for reducing individual privacy and rights to nothing. And right now, it appears that is happening.

We cannot exercise our right to petition the government about surveillance of us if we do not have proof that the surveillance is taking place or has taken place.

The FISA court secrecy should be limited with regard to time. And after that period, any person aggrieved by the surveillance should be able to take the authorities or private companies doing the surveillance or receiving the information from the surveillance to court to show the probable cause justifying the surveillance.

Otherwise, the Bill of Rights is just one big, cruel joke giving us a sense of false security.

[1StrongBlackMan]

13. Serious Question ...

Do you have a problem with the of the warrant process, in general?

I mean ... NO warrant is issued after an adversial process (other than what the judge offers) and every warrant is issued in secrey.

[RiverNoord]

14. Right - I mean, you couldn't put the party

whose property is proposed to be seized on notice to come to an adversarial hearing to argue why their stuff shouldn't be seized. In every single case of evidence of crime and a defendant with half a brain, it would be destroyed or effectively hidden prior to the hearing.

The difference between a standard warrant and a secret warrant is that the warrant may be examined after seizure and the process challenged as improper, under the standards of probable cause, particularity of items to be seized, etc.

The warrants being issued by FISA courts are never seen by anyone whose information is being seized, because the nature of the information being seized is easily obtained without the party subject to the seizure ever knowing about it. That's the whole point of the modern FISA regime. Therefore, not only may a warrant not be challenged, but it will never actually openly be used in the standard criminal process.

This is what makes the whole thing so grotesque - a handful of civilians sitting in the House and Senate get a general idea what's going on, but never the particulars of an actual warrant. Only a small number of people in the CIA, the NSA (which is a military organization), occasionally the President, and sometimes the FBI actually know what is being requested, and they can't reveal anything to anyone outside of the system.

In other words, it is impossible to know not only what information is being secretly obtained about us by our own "intelligence" organizations, but also what use it is being put to. If that isn't a recipe for creeping fascism, I don't know what is. Anyone who thinks that this sort of thing is keeping 'us safe' is entirely ignoring how incredibly unsafe it is for all of this information to be in the hands of unaccountable intelligence analysts - they're human beings, and inevitably human beings abuse systems.

[RiverNoord]

17. The EFF or ACLU

might be under permanent surveillance? I take that as a given.

I assume that a forum such as DU is also on a number of target lists.

Even with time-limited secrecy, the only way a FISA regime could not violate the Fourth Amendment would be to apply precisely the same standards to warrant issuance as in any other court in the US - probable cause, particularity as to the information being seized, issuance by a truly independent judge, etc. Then it must be made public in a relatively short period of time.

Even then, it's dubious.

[Fantastic Anarchist]

4. "What Fisa does is not adjudication, but approval."

Quoted for truth.

K&R

[limpyhobbler]

6. Again, thanks Ed Snowden for leaking, thereby opening the door for legal challenges and criticism.nt

[RiverNoord]

16. This was open knowledge before Snowden dished out the goods

on a single FISA warrant pertaining to Verizon. Congress even retroactively provided legal immunity to providers who handed their info over to our 'intelligence' services years ago, to provide for the possibility that it might have been illegal.

Doesn't anyone recall the whole 'warrantless wiretapping' debacle starting in the Bush Administration? This is what it was all about - very little true 'warrantless' wiretapping was going on, but secret FISA courts were granting secret permission to secret agents to gather whatever secrets that they claimed they needed from whomever they needed it from.

We have a new major player in the American 'Game of Thrones' - the 'intelligence' agencies, and what can't they get when they basically have any and all dirt anyone's ever transmitted electronically, at least starting around 2002?

You can bet that each and every post on DU is being obtained by the NSA, categorized according to keywords and originating IP address, and analyzed in order to determine the identities of each poster.

[limpyhobbler]

18. I didn't think so. The NSA publicly denied the existence of mass surveillance until Snowden.

[RiverNoord]

20. Of course the NSA publicly denied

the existence of mass surveillance - that's part of their job. However, it was open, tacitly accepted reality in pretty much all other political circles for years.

Check out this article by James Bamford, writing for Wired over a year ago, just for an example...

http://www.wired.com/threatlevel/2012/03/ff_nsadatacenter/

[ForgoTheConsequence]

8. "Court"?

How can it be a court if there is no one there to argue the other side? It's a rubber stamp.

[RiverNoord]

15. Again, there never are adversarial hearings

before the issuance of any search warrant - see my post #14 above...

The problem isn't the absence of an adversarial party, it's the secrecy.

[markpkessinger]

22. There is never anyone there "to argue the other side" over the issuance of a warrant . . .

. . . not in any court anywhere in the U.S.

[BornLooser]

9. Congress has no oversight why?

Plausible deniability. Got to be, what the hell else makes sense besides cover thine ass. DC rule #1

[Igel]

23. Because Congress isn't the Judiciary.

Three co-equal branches, remember?

The President doesn't have oversight of Congress, neither does the Judiciary. Congress doesn't have oversight over the President, nor over the Judiciary. Etc. Checks and balances, but no oversight.

[BornLooser]

24. Rememb..YGBFKM! In the Berman the Boomer voice: "C'mon, Man!"

Oversight...1a: Responsible and watchful care.
1b: Regulatory supervision <congressional oversight>
Synonyms: administration, care, charge, control, direction, governance, guidance, handling
intendance, management, operation, conduct, regulation, stewardship, supervision

Checks and Balances: a system that allows each branch of government to amend or veto acts of another branch so as to prevent any one branch from exerting too much power.
Are you seeing similarities here? They are one and the same.


Did the United States Congress authorize FISA? I do believe they did.
Oversight-re-Checks and Balances are needed here, whatever you want to call it. NO SECRET B.S.!

[1StrongBlackMan]

11. Isn't that ...

what President Obama has indicated that we should be doing?

[randome]

12. Any objections?

[hr]
[font color="blue"][center]Birds are territorial creatures.
The lyrics to the songbird's melodious trill go something like this:
"Stay out of my territory or I'll PECK YOUR GODDAMNED EYES OUT!"[/center][/font]
[hr]

[Igel]

25. He's embarrassed, an outsider, and doesn't agree.

He knows quite well that a warrant is not the same as adjudication in the sense of settling a dispute. There's the judge and the claimant, and nobody else. And if it's adjudication in the way that warrants and such are "adjudicated," then it's up to the judge to review the evidence. The bar is a bit lower because there's always a remedy if it's been found that the government overstepped its bounds or that the decision was flawed. The evidence is tossed--it's guilt and innocence that the courts deal with, and the FISA court doesn't deal with guilt or innocence. Period.

If he objects to that kind of thing, I'm surprised he accepted a FISA Court appt. That's all they do--look at applications and decide if the application was filled out and the evidence strong enough or argumentation valid enough to permit evidence collection.

Given that this judge hasn't reviewed the evidence and has been out of the loop for 3 years, he is making inferences based on incomplete, albeit expert, information. He can only really speak concerning what was done when he was there. Oddly, he's not.

So here's the question: When did "relevant" come to mean a wide range of metadata?

My inference so far has been "under Bush," although that's perhaps my main source of info on this is DU OPs and there'd be a natural inclination (on the part of most people) to avoid embarrassing Obama and Holder.

This guy retired in 2010 according to the article. Bush had been gone at least a year by then. So if the meaning did change under Bush, it changed during his tenure. I wonder if he used the expanded definition.

Or is he like O'Connor (Ginsburg?)--he lost an argument in camera and can now defend his own reputation in public by saying how much he disagreed with it, knowing that those still "in the game" are pretty much held to secrecy. It's easy to make a convincing argument when there's only one side arguing in the court of public opinion, and it's almost a slam dunk that his argument will be rubber-stamped. It's a process he obviously thinks is just fine.

Oh. Wait. That's his complaint about the flawed FISA court in the first place--that it only hears one side of the argument and rubberstamps it.

[DeSwiss]

27. Yeah, why don't they fix this while they're at it.....