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0 pointsadestefan13y ago0 comments

We do know who appointed them. They are 11 federal judges who are appointed to 7 year terms by the Chief Justice of the Supreme Court. At least 3 must live within 20 miles of Washington, DC, they can only serve one term, and none can be sitting on the Court of Review.

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3 comments · 1 top-level

mindcrime13y ago· 2 in thread

I stand corrected. But the more important point is that the decisions and discussion are private and without oversight, and the presumption that they basically "rubber stamp" all these surveillance requests. Now, maybe they don't just "rubber stamp" everything. But without more info, who's to say?

Edit: Also, for anyone more interested in details of the FISC (some of which I obviously misremembered), here's a good resource:

http://epic.org/privacy/terrorism/fisa/fisc.html

tptacek13y ago

The rubber stamp argument is brandished in any discussion about FISA anywhere, from message boards to NPR. But it's not hard to see that there are at least two phenomenon that can account for it:

(1) That FISA courts are not a meaningful check on the authority of NSA and the FBI to surveil people, or

(2) That the overwhelming majority of FISA cases involve prima facie legitimate surveillance targets.

I do not find (2) that hard to believe. I'm not a firm believer in FedGov competence, but I really don't think NSA analysts are making up random targets; neither, for that matter, does Snowden, who intimated as much when he was interviewed.

(Just because I don't think surveillance in the 2000's has been abusive, it does not follow that I think we should be unconcerned with checks on surveillance).

dragonwriter13y ago

#1 is true whether or not #2 is true, because there is no adversarial process in the FISA courts. A one-sided legal process is never a meaningful check. With regular courts, even when the initial process is similarly one-sided (as it is with search and arrest warrants), the fact that the outcome will be subject to adversarial process down the road is something of a constraint (but, even then, I don't think anyone is going to be point to the regular warrant process as a particularly strong check on executive power.)

The FISA warrant process, because of its secrecy and because it is generally not subject to downstream adversarial process, isn't a meaningful check. If the judges on the FISA Court are extremely diligent, it might be better than nothing, but given the secrecy around it, its unlikely that anyone not directly involved will ever really know whether or not it is (which is one of the things that makes it less likely that it will be.)

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