> The new amici...will not represent specific clients.
Let's be clear. These are friends of the court, not any kind of advocates. They work for the court. They are not adversaries to the executive.
What, for example, will happen if the court systematically ignores them? Can they go to the media? What can they do but resign? That will make the nightly news and be forgotten by morning.
This creature is called a "court," but, lacking adversarial advocates it's wholly an instrument of the executive branch. Adding some friends with impressive resumes does not change that.
It's staffed with Article III federal judges who are appointed by the Chief Justice, which makes its construction about as far from the executive branch as you can get.
It oversees the NSA and CIA, which are controlled by the executive branch, and has no authority to hear cases. It hears only matters regarding foreign intelligence, which puts its subjects outside the protection of the Constitution, which protections are most of the point of Article III courts. It is in that sense so difference from Article III courts as to make it a little unclear whether it is one.
And it was created by Congress, as a way of delegating rulemaking about surveillance that was properly owed by Congress --- the FISA process was a way for the 1970s Congress to punt on the issue. Unlike other courts, Congress can abolish FISA tomorrow and replace it with a set of rules. It is in that sense entirely a creature of Congress.
Interesting background. Thanks. Here's my question. Exactly who outside of the court itself knows what it does? That is, what entities are privy to it's docket, rulings and the details of it's proceedings?
I believe the answer is "no one." If I am correct, it is an abandonment of the thing that makes America the greatest country in the world: It's endless appeals system.
Not quite no one. Certainly applicants themselves are privy to the details of cases they themselves bring. I guess applicants are always agencies of the executive branch.
Is that where it stops? I wonder, do FBI agents discuss details of it's FISC cases with, for instance, NSA agents? And can the FBI, for instance, obtain details of a FISC case brought by, for instance, the NSA?
> Top lawyers from the American Civil Liberties Union and the Electronic Frontier Foundation called these attorneys “impressive.”
I dislike FISA as much as anyone, but I'm glad to hear the EFF is impressed with the attorneys. While the article is silent on their recourse if they are ignored, surely they can appeal to whoever in the administration did the hard work to get them there. Given their credentials, you can be sure there was a lot of opposition to this.
So if they really did pick an "impressive" list, I'm curious what their incentive was for doing so? What is that selection process and who does it? Anyone know?
It's a solid list of tech-savvy attorneys with strong pro-privacy backgrounds. The court appointed them; FISA judges are not, contrary perhaps to appearances, looking simply to rubber-stamp government requests for surveillance, but the lack of an adversarial system certainly has given that appearance to the proceedings. Adding a public-interest counterweight to something that has gone from an extraordinary venue to a routine investigatory tool can only increase the legitimacy of FISC.
This is a favorite statistic for advocacy reporters, but it has many different interpretations:
1. Perhaps FISA really does rubber-stamp all requests.
2. Perhaps NSA really is surveilling almost solely targets of real security interest.
3. Perhaps the FISA process and the documentation it generates forces NSA to be overly conservative about surveilling targets, to the detriment of security.
4. Perhaps NSA only uses the FISA process for targets of real security interest, and uses some other process for other targets.
In fact, a 50/50 success rate at FISC would be disturbing for other reasons: it would imply that the USG was aggressively targeting people of no security interest, and only the FISC process was preventing that from happening.
Given the US's abysmal human rights record in recent years I have to go with what Sam said - "Whenever there's doubt, there is no doubt".
"Perhaps" is no longer enough to sway me. Apart from the reason already given, we the west are still suffering terrorist attacks, making the NSA (and GCHQ et. al.) wasted money.
Serious question --- and I will probably agree with your answer, I think --- how else could it work? We're talking about surveillance of foreign terrorist and weapons proliferation networks. What's the part of this that shouldn't be secret?
It's not black and white. It should be secret for a specified period of time, and then declassified. After all, the secrecy of "take Biggin Hill" only has value until the order is executed.
The "period of time" needs to be short - in the 12-to-24 month range, rather than the 50-100 year range.
The US effort to disrupt Al-Qaeda is over a decade old. At what point in that effort does the public interest in tracking what NSA/DOJ/CIA is doing override the public interest in not compromising sources and methods for what is still a very real threat to the world?
Maybe a model statute that required the USG to (a) declare its surveillance objectives publicly (it's no secret that we're after AQ and ISIS, nor should the USG get to be secretive about its broad objectives) and (b) limit use of the FISC process to targets operationally relevant to those objectives.
But while I would be happier with that kind of transparency, I think people actually involved with surveillance would say it's just window dressing, because the totality of the FISC process and the 2001 and 2003 AUMFs has the same effect.
Nothing I suspect. If other countries don’t want to join in then the NSA could be turned into a more effective version of wikileaks. While I doubt anything like this will ever happen, it certainly would be interesting.
Possibilities 2 through 4, while theoretically possible, are highly unlikely based on fairly basic observation of human nature and how secret power operates. And because it's all secret, we're entitled to make the most ungenerous guess.
You mentioned 50/50. The other poster mentioned 99 percent. Maybe something in between would not be problematic? Ninety percent approval? I'll acknowledge that we are of course just talking about red flags here at most.
As an aside, I'd imagine that in previous days without these public advocates, the government would have bent over backwards in choosing submissions judiciously, to guard against the obvious perception that the court was being abused. But now perceptions are different, and they can (from a PR standpoint) afford a very small amount of fighting with the public advocates. So maybe now they'll push the envelope a very slight bit, see where the boundaries are.
The argument I've heard is that the judges work with the agencies rather than outright reject them, skewing the statistics. The judges will say, "Come back with more evidence", and the agencies go out and do it.
Not sure I believe that story, and even if it's true it's not a great idea to rely on the innate moral fiber of the judges, but that stat is not necessarily a smoking gun.
I sort-of agree with you, but our system of jurisprudence is adversarial. If there's no one opposing a warrant, it's hard for the judge to take it upon himself to argue the counter. So, a set of impartial "people's advocates" would go a long way in cutting down this figure of 99%.
The vast majority of non-FISC warrants are also granted. The reason is that prosecutors don't want a reputation for wasting time or getting their evidence overturned.
The problem with the FISA court is that it lacks oversight provided by publicly-readable appeals. This, legal scholars have no way to debate if warrants are valid or invalid.
How do you figure? These lawyers aren't there to defend or attack anyone in particular, but to defend or attack a certain process of collecting data, if they believe what the government is doing is unlawful.
But presumably that will eventually end up in an adversarial court? It's only secret until it's used as evidence. The NSA's targets will likely never get to defend themselves or debate the legality of the collection of evidence.
It's outrageously difficult for US citizens to bring a case against illegal or questionably-legal domestic use of our foreign intelligence gathering programs, tools, and/or assets.
Search and wiretap warrant requests are secret (until served), and are (especially in the wiretap case) approved the overwhelming majority of the time.
Let's be clear. These are friends of the court, not any kind of advocates. They work for the court. They are not adversaries to the executive.
What, for example, will happen if the court systematically ignores them? Can they go to the media? What can they do but resign? That will make the nightly news and be forgotten by morning.
This creature is called a "court," but, lacking adversarial advocates it's wholly an instrument of the executive branch. Adding some friends with impressive resumes does not change that.