Saturday, August 17, 2013

The FISA court, our supposed guardian against abuse of national-security surveillance, sez "Who, us?"


Judge Walton says: "The FISC is forced to rely upon the accuracy of the information that is provided to the Court. The FISC does not have the capacity to investigate issues of noncompliance."

by Ken

You want a good laugh?

You know the Foreign Intelligence Surveillance Court, the one created by the Foreign Intelligence Surveillance Act to issue surveillance warrants in cases too secret to go through normal court channels? The one that rules on all the government requests for warrants more or less authorized by the Patriot Act and its assorted derivatives? The court that, we only just learned, as entirely hand-picked -- presumably for warrant-friendliness -- by Supreme Court Chief Justice "Smirkin' John" Roberts ("Chief Justice Roberts does everything he can to see that the FISA court remains a trusty tool of the national-security state")?

The one that, crucially, has been heralded as our bulwark against trampling of our civil liberties by presidents dating all the way back to . . . uh, what was that fellow's name? The bumbling nitwit who dithered us into two wars? Yes, as the legend went, the Federal Intelligence Surveillance Court was standing vigil over government spying by fulfilling its statutory responsibility to issue warrants for surveillance too secret for authorization by normal judicial means. Rest easy, America, the FISC is on the job!

Um, maybe not so much.

This week the Washington Post's Carol D. Leonnig told us (in "Court: Ability to police U.S. spying program limited," with additional reporting by Barton Gellman, Peter Wallsten, and Alice Crites):
The leader of the secret court that is supposed to provide critical oversight of the government’s vast spying programs said that its ability to do so is limited and that it must trust the government to report when it improperly spies on Americans.

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.”
Oops! This isn't exactly the story our leaders have told us.
Walton's comments came in response to internal government records obtained by The Post showing that National Security Agency staff members in Washington overstepped their authority on spy programs thousands of times per year. The records also show that the number of violations has been on the rise.

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.

President Obama and other government leaders have emphasized the court's oversight role in the wake of revelations this year that the government is vacuuming up "metadata" on Americans' telephone and Internet communications.

"We also have federal judges that we've put in place who are not subject to political pressure," Obama said at a news conference in June. "They've got lifetime tenure as federal judges, and they're empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused."
Oops! I know I already said that, but this seems to call for another "oops" or two, at minimum. For one thing, as we learned in Charlie Savage's NYT revelations about the makeup of FISC, it's not exactly "we" who appoint its judges, it's the Chief Justice, and all 11 current judges were appointed by Big Chief Smirkin' John, who has stuffed the body with right-wing darlings, and especially former executive-branchers whose background as well as temperament almost certainly disposes them to rubber-stamp any request made by government authorities for surveillance authority.

(What's more, according to the Savage report, people familiar with the workings of FISC say that it has gone way beyond it's original role of saying yes or not to warrant request and now in its rulings essentially makes policy on national-security privacy and secrecy issues. In secret, of course.)

All parties stress the technical complexity of the issues as they come before FISC, which is the justification for appointing all those stooges who used to be, or at least work among, the kind of people who request these warrants. Now, if Chief Judge Walton is to be trusted, the FISA court judges are pretty much in a position where they have to trust the facts as presented to them by the warrant petitioners. Well, maybe they don't have to, but they do. Maybe they look deeply into petitioners' eyes to judge their sincerity and truthfulness. Maybe they don't. As far as I can tell, the judges don't even ask petitioners to pinky-swear.

Oh, one more point about those "violations" that are reported by the government, as mandated by the law. Again, those familiar with the workings of the court insist that the number of actual violations substantially exceeds the number reported. Of course the FISC judges wouldn't have any way of knowing about that, would they?

Carol Leonnig concluded her report by going -- bless her soul! -- into ironic mode:
Last week, the president said that he recognizes that some Americans may lack trust in the oversight process -- in which the secret court approves the rules for collecting Americans' communications -- and that he will work with Congress on reforms, which could include a privacy advocate to the court.

"In other words, it's not enough for me as president to have confidence in these programs," Obama said in his news conference. "The American people need to have confidence in them, as well."
"A privacy advocate to the court," eh? A privacy battalion, with the necessary investigative resources, might be one thing; "a" privacy advocate, hmm, not so much in the confidence-building department.


Tonight's "TV Watch," a look back at the great series Friday Night Lights, follows at 12am ET/9pm PT.


For a "Sunday Classics" fix anytime, visit the stand-alone "Sunday Classics with Ken."

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