The Dish

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.

Chait celebrates the Senate’s lopsided cloture vote on the bill today:

It’s a vote to have a debate on immigration reform, not a vote for a particular bill, which is sure to attract fewer than 82 votes in the end, and probably far fewer. But it gives the general impression that conservative opponents are merely going through the motions and have made their peace with a likely defeat. And that impression is not wrong.

That 82 votes is a signal that Republicans in the Senate are, indeed, not using every tool they have to block a bill. Eighty-two votes to proceed is a way of signaling that the status quo, not the expected outlines of a bill, is what is most unacceptable. This is the opposite of how Republicans have approached the major legislation of the Obama era, beginning with the stimulus, when they did not make any distinction between voting to allow debate and voting on the underlying merits of the final bill. Republican senators today faced a choice to position themselves as fundamentally opposed to the entire process, and most of them decided to stand aside.

Weigel adds:

Only the delegations from Alabama, Idaho, and Wyoming voted fully against proceeding to debate. Less trivially, reformers have stuck to “70” as the number they need to hit in the Senate in order to build momentum for a vote on a House reform bill. They can afford to lose 12 of today’s “aye” votes; Republicans are convinced they can limit those losses if they allow some amendments that allow them to save face on “border security.”

Barro believes that immigration reform is going to pass:

For many, many House Republicans, the ideal situation is for a reform bill to pass over their objections. Business interests will get the bill they want, Democrats will be deprived of a powerful talking point with Hispanic voters, and individual house members will be able to tell conservative primary voters that they tried to “stop amnesty.” Win, win, win.

This is encouraging:

Dear Attorney General Holder and Director Mueller,

… Assertions in the press that our compliance with [NSA] requests gives the U.S. government unfettered access to our users’ data are simply untrue. However, government nondisclosure obligations regarding the number of FISA national security requests that Google receives, as well as the number of accounts covered by those requests, fuel that speculation. We therefore ask you to help make it possible for Google to publish in our Transparency Report aggregate numbers of national security requests, including FISA disclosures—in terms of both the number we receive and their scope.

Even better:

Seeking to drag the shadowy world of U.S. national security law into the light, a bipartisan group of senators has proposed a bill that would declassify significant legal opinions reached by the Foreign Intelligence Surveillance Court… The bill is based on Merkley’s past proposal to declassify important FISA court opinions. He is joined by a small bipartisan group of senators that includes Democratic Sens. Patrick Leahy of Vermont, Ron Wyden of Oregon, Jon Tester of Montana, Mark Begich of Alaska, and Al Franken of Minnesota. Republicans joining the effort include Senator Mike Lee of Utah and Dean Heller of Nevada.

A more open and transparent FISA court process would be a big step forward toward ensuring this isn’t abused. So would what Google proposes.

Drum’s core – and legitimate – worry about the NSA program:

I find it quite likely that NSA isn’t currently abusing the phone surveillance program … but someday there will be a different president in the White House, there will be a different head of NSA, and there will be different professionals running the program. What will they do with all that data the next time something happens that makes America crazy for a few years? I don’t know, but I do know that if they don’t have the data in the first place they can’t abuse it.

But if they don’t have the data, they also cannot use it. Waldman shares Drum’s fear:

They aren’t just looking through people’s records willy-nilly; mostly all this information is just there waiting, and they look at an individual’s records only once they have reason to suspect they might be connected to something fishy. But it isn’t because they can’t, it’s because, they say, they’ve chosen not to.

And that may well be true. But is the next administration, and the one after that, going to do the same? Especially if it’s run by people who not too long ago were torturing prisoners; claiming the president had the right to order the arrest of an American citizen on American soil and throw him in jail for life with no charges, no trial, and no access to legal counsel; asserting that the vice president existed in a legal netherworld between the executive and legislative branches that left him immune to any rules or oversight he found inconvenient; and a hundred other abuses of power that we’ve already almost forgotten by now?

I haven’t forgotten. So this may be a golden opportunity to reform the security state – while we have a president and a potential bipartisan coalition who are sympathetic to the cause. But again, that requires real engagement with public opinion, which by big margins support PRISM – and an acceptance that the program we have has a legitimate purpose. Almost every single thing the government does can be abused. That doesn’t mean the government should be barred from doing anything that could lead to such abuse. It means more accountability.