FISA Court's Chief Judge: I'm Not a Rubber Stamp

The United States' FISA (Foreign Intelligence Surveillance Court) institution is an American judicial anomaly. Its principal role is to evaluate and rule on federal government requests to snoop on "suspected" terrorists and other clear and present dangers to this country.  The case, the evidence, and the rulings are secret. Only Department of Justice attorneys may present a case; no other attorney or representative is permitted. Judging from recent revelations about the American surveillance state, it seemed FISA played the matador to the Justice Department's bull.

Not so, claimed FISA's presiding judge Reggie B. Walton, as The Washington Post reported in today's online edition. In a letter Walton sent to Senate Judiciary Committee members Patrick Leahy (D) and Charles Grassley (R), he asserted FISA sent nearly one in four requests back to the Justice Department for "substantive changes." (For more on Walton's judicial background, you should explore his official biography, posted on the US District Court for the District of Columbia's website.)

FISA judge Reggie B. Walton

That left three of four either requiring a lower degree of modification or no change at all. That means the DOJ legal team is batting .750 on its requests to spy on alleged political bad actors. Included in that .750 average is a FISA ruling approving the sweeping collection of Americans' phone records. That was the haystack, as the NSA characterized the massive data grab, security teams needed to create in order to find a terrorist needle. If that notion seemed like a good idea to a FISA judge, one wonders about the content or intent of the rejected DOJ motions.

Meanwhile, a declassified 2009 ruling sheds some light on the surveillance state's assault on privacy. As the Post story noted:

...Walton scolded the government for repeated violations of court orders and falsely assuring the court it was following required steps to protect Americans' privacy.

General Keith Alexander

Privacy procedures "have been so frequently and systematically violated that it can be fairly said that this critical element of the overall [phone records] regime has never fully functioned effectively," Walton wrote. He added that the explanation of the misunderstanding of the court's order by Gen. Keith Alexander, NSA's director, "strains credulity."

FISA Court Upholds NSA Phone Snooping Tactics

Ellen Nakashima
(Image: cfp.org)

The NSA's sweeping (no pun intended) ability and evident willingness to aggressively data mine domestic phone conversations was upheld by a FISA judge this week. The Washington Post's Ellen Nakashima reported this story in today's online editions of the newspaper.

The FISA (Foreign Intelligence Surveillance Act) court is an American judicial anomaly. Its secret proceedings feature a plaintiff and no defendant. A government attorney makes a case, and a FISA jurist determines its suitability under the judge's interpretation of current federal statutes. The court straddles the line between a rubber stamp for NSA activities and a light touch of "judicial oversight."

Former US Attorney General
Alberto Gonzalez

One consequence of Edward Snowden's revelations was sharply increased doubt regarding the efficacy of the FISA court. The NSA seemed like an organization that could simply make up the rules of the game, and not inform anyone about them. The right to privacy? That notion seemed as "quaint" as George W. Bush's former attorney general Alberto Gonzalez once considered the Geneva Convention's protocols.

The recent FISA ruling the Post cites expands this alarming erosion of privacy rights. As Nakashima notes:

The gathering of "all call detail records" from phone companies is justified as long as the government can show that it is relevant to an authorized investigation into known -- and, significantly -- unknown terrorists who may be in the United States, the Aug. 29 opinion states.

Moreover, the government need only show that there are "reasonable grounds to believe" the records will be relevant to the investigation, a lower burden than required in ordinary criminal investigations. That is justified because the goal is to prevent a terrorist attack, not solve a crime that has already taken place, the court said, affirming the government's position.