Is FISA An Effective Check? Ctd

Jun 11 2013 @ 7:52pm

A reader pushes back against another:

Your reader claims that the FISA Court must be a “kangaroo court” because it never denies applications. I, too, do not like the appearance of a court that grants almost every warrant application.  But this is much more complicated than it looks.

First, the warrant process can be back-and-forth.  I have heard FISA Court judges explain that in reviewing applications they sometimes find some aspect deficient, and tell the DOJ of their concern.  The DOJ then, if possible, tries to improve the application (say, with additional facts) to satisfy the court’s concern.  If they know they cannot, the DOJ may simply withdraw the application.  This means the “granted versus denied” number is much less informative than it first appears.

Second, FISA applications are complex and often lengthy.  The government does not bother with one unless they really want one, and then they put the time in to make the application thorough.

Third, it’s worth looking more carefully at who some of these judges are (and have been).  In many ways the court is secretive, but one thing we do know is the members.  They are all sitting federal judges.  Here are a few who served recently:  Judge James Roberston, of the D.C. district court, was on the FISA court for a number of years until he resigned in 2005 to protest the Bush administration’s warrantless wiretapping program.  He was appointed to the federal bench by President Clinton, and early in his career worked for the Lawyer’s Committee for Civil Rights under Law.  His public judicial work shows that he is anything but a rubber stamp for government police powers.  Yet he (apparently) rejected almost no applications, as there were only 11 rejections out of almost 34,000 from 1979-2012.  Or consider Judge James G. Carr, who served on the FISA Court from 2002-2008.  He was appointed to the federal bench by President Clinton, and is a former law professor who wrote an extensive treatise on wiretapping law.  I have practiced in front of Judge Carr; he, too, is no rubber stamp.

It is definitely worth scrutinizing the FISA Court, but it is not a kangaroo court.

I’m grateful to have this expert perspective; and relieved.