FISA Court Judges Aren't Happy That The Public Is Upset Secret Court Issuing Secret Rulings Allowing NSA To Spy On Them

from the well,-perhaps-they-should-have-thought-about-that-earlier dept

Tue, Jul 2nd 2013 2:33pm — Mike Masnick

Shockingly, it appears that the various judges who make up the secretive FISA Court, which issues secret rulings on secret interpretations of the law that allow the government to spy on Americans, aren't particularly happy about the sudden attention they're getting. In fact, they're complaining that the claims that they're a rubber stamp are unfair, and that they're human beings too. Specifically, they're upset about the recent leaked revelations that include an inspector general's report about some FISA court activities:

U.S. District Judge Colleen Kollar-Kotelly, the former chief judge of the Foreign Intelligence Surveillance Court, took the highly unusual step Friday of voicing open frustration at the account in the report and court’s inability to explain its decisions.
“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” Kollar-Kotelly said in a statement to The Post. It was her first public comment describing her work on the intelligence court.

You see, they're not just FISA court judges, but they're human too. When you cut them, do they not bleed? When they issue secret rulings that appear to go completely against the 4th Amendment, are their phone call records and emails not subject to mass collection as well?

Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.

“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”

Of course, it's nice to say this, but when it's all done in total secrecy, without any sunlight or real oversight, it's difficult to believe that the process really is all that careful. Given the additional leaks that show that the NSA more or less signed off on massive data collections, it's hard not to see that as a very cozy and "collaborative" setup, rather than particularly adversarial, where anyone is looking out for the rights of the public and the limits on government overreach as presented in the Constitution.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: fisa court, nsa surveillance, rubber stamp, surveillance state

50 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Secret Rulings Are Even Concealed From Other FISA , 2 Jul 2013 @ 2:48pm

http://www.washingtonpost.com/politics/secret-court-judges-upset-at-portrayal-of-collaboration-with- government/2013/06/29/ed73fb68-e01b-11e2-b94a-452948b95ca8_story_2.html

[...] On July 14, 2004, the surveillance court for the first time approved the gathering of information by the NSA, which created the equivalent of a digital vault to hold Internet metadata. Kollar-Kotelly�s order authorized the metadata program under a FISA provision known as the �pen register/trap and trace,� or PRTT.

The ruling was a secret not just to the public and most of Congress, but to all of Kollar-Kotelly�s surveillance court colleagues. Under orders from the president, none of the court�s other 10 members could be told about the Internet metadata program, which was one prong of a larger and highly classified data-gathering effort known as the President�s Surveillance Program, or PSP.

But the importance of her order � which approved the collection based on a 1986 law typically used for phone records � was hard to overstate. [...]
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 2:49pm

adjudication requires opposing parties to be present and provide evidence and arguments to the adjudicator. How can the "process of adjudication" be ex-parte?
[ link to this | view in thread ]
ChurchHatesTucker (profile), 2 Jul 2013 @ 2:49pm

You know who else was human?
Hmm?
[ link to this | view in thread ]
Judiciary takes orders from the President?!?, 2 Jul 2013 @ 2:57pm

Whatever happened to the idea of three co-equal, independent branches of government?!? How exactly does the President get to give orders to the judiciary???
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 2:58pm

'rights of the public'? who are they? 'overreach as presented in the Constitution'? what is that? the public are no one, until election time. the Constitution is nothing any more, until someone powerful or wealthy needs to use it, that is. it's not just the government that has basically wiped out the Constitution, various courts have done a much bigger job on it! laws have been eroded, twisted, bent, usually to suit the circumstance of a case involving the entertainment industries, from Hollywood to cable companies. verdicts like the one against Tenanbaum show how ridiculous they have got. let-offs like the ones in favour of Sony when it removed the very thing, 'the other o/s' that many bought the PS3 for and against Microsoft instigating the stopping of law suits in favour of 'arbitration' as soon as you accept the TOS which has to be done or you couldn't/cant use their console (and cant get a refund either!)
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 3:07pm

Human beings, huh?
Let's put on a certain pair of sunglasses and find out for sure.
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 3:12pm

Maybe Congress should be getting reports from the court
The only report they see is filtered through the paradigm of those making the requests to FISA.
[ link to this | view in thread ]
Anonymous, 2 Jul 2013 @ 3:16pm

I'm surprised she doesn't spell her first name with a K as well.
[ link to this | view in thread ]
Dave Xanatos, 2 Jul 2013 @ 3:19pm

I participated in a process of adjudication, not �coordination� with the executive branch.

We don't believe you. Documents or it didn't happen.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 2 Jul 2013 @ 3:32pm

Irony?
took the highly unusual step Friday of voicing open frustration at the ... court�s inability to explain its decisions

There's something amusing and yet pathetic about secret judges being unable to defend their reputation.
[ link to this | view in thread ]
RD, 2 Jul 2013 @ 3:38pm

Never Listen To Kotelly
You should never listen to anything this woman has to say. She is, after all, the judge who presided over the infamous Microsoft anti-trust case which resulted in a resounding wrist-slap for Microsoft and punished them by wagging her finger and saying "bad software company" and resulted in sweet fuck-all of punishment or curtailing of Microsoft's many abuses of their position with OEM and retailers. One of the worst, most ineffective judges to ever sit the bench.
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 4:18pm

When is a judge not a judge?
Well, I guess that it's possible for even rubber stamps have feelings.
[ link to this | view in thread ]
rapnel, 2 Jul 2013 @ 4:34pm

I am simply disgusted.
[ link to this | view in thread ]
Capitalist Lion Tamer (profile), 2 Jul 2013 @ 5:03pm

Re: You know who else was human?
Well, Leon certainly wasn't. But I'm not sure what a Voight-Kampff would kick out in response to a rubber stamp.
[ link to this | view in thread ]
Stuart Gray, 2 Jul 2013 @ 5:12pm

FISA Court Judges.
They are traitors.
Every last one of them.
People should camp out on their lawns. People should shout profanities at them every waking moment.
They are evil.
Fuck Them.
[ link to this | view in thread ]
Nastybutler77 (profile), 2 Jul 2013 @ 5:47pm

I like how all three branches effectivly keep up a mantra of, "Trust us; we know what's good for you."
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 6:05pm

The record of approved to rejected speaks far louder than this judge's words who can't say what's what on the topic.

I would also like it known that one of the targets in watching public officials, military officers of note, judges, politicians, and other citizens has been to allow the government to watch banking account activity under the disguise of drug surveillance where banks were to report suspicious activity to the FBI.

This is how Elliot Spencer got caught in attempting to pay for his prostitutes services through using someone else's name.

Gen. David Petraeus was verified in having adultery through the looking through of his email for proof in his draft folder of his email. The email was never sent as Paula Broadwell and he never sent them out but rather logged into the same account to put in new drafts.

Any citizen without such fame can expect much less security when it comes to looking at what they've done on the internet.

Glenn Greenwald says another bombshell will be dropped soon exposing more of the shenanigans of the NSA.

Since our officials are not coming clean about this mess, it will continue to build until we have answers and something done to cure this police state spying mentality. Not just the citizens of the US but those of other countries demand it.
[ link to this | view in thread ]
Tom Anderson, 2 Jul 2013 @ 6:28pm

Isn't adjudication defined as the process of deciding between evidence presented by disputing parties? If the executive is the only party presenting evidence, then obviously this is not adjudication, but something else. A warrant requires a judge's authorization, not adjudication.
[ link to this | view in thread ]
Tom Anderson, 2 Jul 2013 @ 6:30pm

Isn't adjudication defined as the process of deciding between evidence presented by disputing parties? If the executive is the only party presenting evidence, then obviously this is not adjudication, but something else. A warrant requires a judge's authorization, not adjudication.
[ link to this | view in thread ]
pr, 2 Jul 2013 @ 6:40pm

Human, all right
Every human's greatest strength is the power of self-justification. Everyone deserves adulation for doing a great job, if you ask them. Just ask every CEO of every company. Even if the company is in the dumper, the boss is doing a great job. Because he gets to evaluate his own performance.

I'm sure if you ask any federal judge, they'll tell you that they're doing a great job, too. Since there are no consequences for doing a bad job they get to blithely go on in a misty world of self-justification. Oh, sure, some columnist might complain about one of their rulings, but they are biased, political, stupid, or something. Maybe a higher court will overturn one of their rulings, but that's because those higher judges are biased, political, stupid, or something.

Here we have a federal judge that not only bears none of the consequences for her actions, her stuff doesn't get criticized by biased columnists or even get reviewed by a higher court. There's no feedback whatsoever. Except the adulation of the prosecutors who smile every time she says "yes". Is it any surprise she thinks that everything she does is wonderful?
[ link to this | view in thread ]
Uriel-238 (profile), 2 Jul 2013 @ 6:40pm

The problem is...
A secret court shouldn't exist, even if they are human.

In fact their humanity and resulting human biases makes it even worse. That way, we know their sense of justice isn't perfect and requires public oversight.

Incidentally, is the irony lost that the judges on the secret spying court don't like to be watched?
[ link to this | view in thread ]
Pixelation, 2 Jul 2013 @ 6:47pm

It is amazing how the Judicial branch has abdicated their responsibility. I have to wonder what information has been gathered and used against them by the NSA.
[ link to this | view in thread ]
FM Hilton, 2 Jul 2013 @ 6:54pm

Ever heard of the Constitution, lady?
I don't care if they're growing bananas on the bench, but as long as that darned piece of paper we call the Constitution is supposed to (but isn't, really) be the guidance for all "adjudication", the FISA court is illegal and should be dismantled.

Secret acts, secret documents, secret judgements in secret cases with secret laws against the American people are simply not what it was intended to be used for.

Or can't those judges understand this?

Come to think of it, do any of them read, too?

Too bad they're upset that they're being outed after all this time.

Just imagine what the American people must feel.

Yeah, we're pissed. Aren't we supposed to be? Aren't we human, don't we bleed?
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 6:56pm

I smell rubber... and stamps
[ link to this | view in thread ]
Xploder, 2 Jul 2013 @ 7:31pm

Re: Never Listen To Kotelly
You say that like it's a bad thing...
[ link to this | view in thread ]
Xploding_Cobra (profile), 2 Jul 2013 @ 7:44pm

As I see it, the main problem with Federal judges is the fact that they're all political appointees - i.e., they're appointed by whichever political party leader they suck up to the most. The fact that they're then put in a position of almost unlimited power with damn near no oversight makes things even worse. I'm glad all this bullshit is coming out but to be honest, i seriously doubt if anything substantial will change. Oh sure, they may say that they've stopped doing it but does anyone really believe it? If so then you're a complete fool. In fact, anyone who believes anything the government tells them regarding national security measures as being a truthful statement is a goddamned idiot.
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 8:07pm

If insulting Judge Colleen Kollar-Kotelly meets a deep felt and personal need, then by all means indulge yourself. Never mind, of course, that she is a respected and thoughtful jurist, and your attempt at caricature to place her in a false/misleading light falls flat on its face.

As for the FISC, it is not the "rubber stamp" you and other seem inclined to proclaim. This is not, however, particularly surprising since the meme here much more often that not seems to be that most judges are "rubber stamps" when it comes to those laws with which you most strenuously disagree.

Skepticism is a good thing. Drawing conclusions based upon a small data set is not. Let more info come out. Perhaps you will be vindicated. Perhaps you will not. Only time will tell.
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 8:52pm

How do we remove US District Court Judges from office?
clearly, the ones who are in office are not qualified to defend the Constitution.
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 8:59pm

"they're human beings too"

They're crab people don't let them fool you.
[ link to this | view in thread ]
FM Hilton, 2 Jul 2013 @ 9:07pm

Secrets, we haz them
"The secretive federal court last year approved all of the 1,856 requests to search or electronically surveil people within the United States �for foreign intelligence purposes,� the Justice Department reported this week.
The 2012 figures represent a 5 percent bump from the prior year, when no requests were denied either."
Then an anonymous poster says:
"As for the FISC, it is not the "rubber stamp" you and other seem inclined to proclaim"
I dunno, but I think rubberstamp comes as close to a description as any. You don't like it, you can change the dictionary's entry: http://www.merriam-webster.com/dictionary/rubber%20stamp
b : a mostly powerless yet officially recognized body or person that approves or endorses programs and policies initiated usually by a single specified source.

[ link to this | view in thread ]
Uriel-238 (profile), 2 Jul 2013 @ 9:27pm

It's a freaking secret court.
As for the FISC, it is not the "rubber stamp" you and other seem inclined to proclaim...

Even if they are the best, most objective, most impartial jurists in the human race, it's not about them, it's about the existence of the court in the first place.

The evidence we have so far (insufficient as it may be) is that the FISC is overly permissive when it comes to Forth Amendment encroachments. We can't know because they won't tell us. And that lack of transparency prevents we, the people from being able to serve as a check on what they're doing. Until then we assume the worst, because historically, the worst is generally what happens. In the post-Vietnam-War court of public opinion, an agency is self-serving until proven otherwise.

That secret court with its secret orders prevents anyone with significant personal or commercial interests to be unable to fully trust anyone under US jurisdiction. A corporation cannot trust its lawyer; a person, her doctor; anyone, because the court has the ability to command betrayal and silence. And they have no reason not to do so.

The whole point of democracy is the checks and balances, it is so that this country could be run by thieves and bandits and still not fall apart. Once you remove those checks, the system starts to unravel at the seams. (And our founders said as much, and that this decay was inevitable.)
[ link to this | view in thread ]
Uriel-238 (profile), 2 Jul 2013 @ 9:39pm

If nothing changes...
I'm glad all this bullshit is coming out but to be honest, i seriously doubt if anything substantial will change.

It's very possible that all this will blow over in the press, but it will become yet another point of contention between the people and the government, much like the issue of extraordinary rendition and enhanced interrogation. There will be demonstrations. There will be upheavals, and if those are ignored or handled with disproportionate force by the police, civil disobedience will tend to escalate in its magnitude of disobedience.

Maybe it will take subversives and deviants getting disappeared or brought up on outrageous charges before things get exciting, but I have no doubt things will get exciting.
[ link to this | view in thread ]
Guardian, 2 Jul 2013 @ 9:39pm

2003
the united hackers association public archive ..vanished...and will never been seen NOR used by another corporation to harm anyone again..
[ link to this | view in thread ]
Anonymous Coward, 2 Jul 2013 @ 10:10pm

Oh so you are human? Let us see about that. First we will do an MRI, then a CAT scan then a TSA naked scan and finally just to be sure a full strip search... don't worry we promise we wont misuse the information or any footage that might get recorded... You can trust us.
[ link to this | view in thread ]
Rick, 2 Jul 2013 @ 11:28pm

Who's watching them?
Quis custodiet illos custodes? This has always been a problem when you have big brothers claiming to know better than you.
[ link to this | view in thread ]
sounder, 2 Jul 2013 @ 11:40pm

Broken Oaths and No Honor.
Every one of them took an Oath of Office to uphold the US Constitution. ALL of them have failed to uphold The US Constitution and knowingly worked against it. They should be prosecuted for treason.
[ link to this | view in thread ]
Uriel-238 (profile), 2 Jul 2013 @ 11:51pm

Every one of them took an Oath of Office to uphold the US Constitution. ALL of them have failed to uphold The US Constitution and knowingly worked against it. They should be prosecuted for treason.

I wonder if a case could be brought up on them based on this premise?

Not that I actually want to execute a bunch of judges (or jail them forever) but that the possibility of doing so might be bargaining leverage to ...oh... force the FISC to be as transparent as all other courts in the nation.

Has anyone considered a national security program that didn't need to classify everything under the sun?
[ link to this | view in thread ]
Niall (profile), 3 Jul 2013 @ 4:47am

Re: Human beings, huh?
I dunno, they obviously think that They Live!
[ link to this | view in thread ]
RubyPanther, 3 Jul 2013 @ 5:59am

The Court's duty is not to pass the Patriot Act but to provide the oversight it requires.

I agree with her, Congress passed a bad law, but that isn't the Court's fault. And people are making accusations the Court isn't doing their job even though they admit they have no idea if they are or not. Maybe they are treating it the same as regular search warrants.
[ link to this | view in thread ]
dennis deems (profile), 3 Jul 2013 @ 6:48am

Re:
Four lines of strong commentary, then you devolve into a weird, off-topic rant against the makers of game consoles.
[ link to this | view in thread ]
Jasmine Charter, 3 Jul 2013 @ 6:53am

Did I read it right?
"I did the same thing in FISA that I did in regular court... er... rubber stamp warrants."

"Oh... only these were secret and held gag orders so no one could ever question them... or me!"

"Ha ha!"
[ link to this | view in thread ]
Anonymous Coward, 3 Jul 2013 @ 7:06am

Here is the list of the current membership of FISA Court Judges America...you know what to do.

Judge[20] Judicial district Date appointed Term expiry
Reggie Walton (presiding) District of Columbia May 19, 2007 May 18, 2014
Rosemary M. Collyer District of Columbia March 8, 2013 March 7, 2020
Raymond J. Dearie Eastern District of New York July 2, 2012 July 1, 2019
Claire Eagan Northern District of Oklahoma February 13, 2013 May 18, 2019
Martin L.C. Feldman Eastern District of Louisiana May 19, 2010 May 18, 2017
Thomas Hogan District of Columbia May 18, 2009 May 18, 2016
Mary A. McLaughlin Eastern District of Pennsylvania May 18, 2008 May 18, 2015
Michael W. Mosman District of Oregon May 4, 2013 May 3, 2020
F. Dennis Saylor IV District of Massachusetts May 19, 2011 May 18, 2018
Susan Webber Wright Eastern District of Arkansas May 18, 2009 May 18, 2016
James Zagel Northern District of Illinois May 18, 2008 May 18, 2015
[ link to this | view in thread ]
gabe, 3 Jul 2013 @ 7:07am

Re:
There is a rather large data set that say our once great country is in steep decline due to some very corrupt and bi-partisan institutions. The government paid judges are every bit as corrupt as the institutions they protect and no better than the corrupt ruling parties of Mao, Morsi, Pol Pot, Hitler or the Stasi.
[ link to this | view in thread ]
Edward Teach, 3 Jul 2013 @ 8:02am

Re: Never Listen To Kotelly
Aye, mate. I was wondering if anyone else had picked up on that. I checked dates however. She made the original ruling before joining the FISA Star Chamber.

Since the US Court system is rather opaque, it's not clear if one had any influence on the other. She certainly was on FISA and kept track of the wrist slap at the same time.

Let's not forget MSFT's tight relationship with the US GOvernment either. Remember _NSAKEY and we'll all stay free!
[ link to this | view in thread ]
art guerrilla (profile), 3 Jul 2013 @ 8:40am

Re: FISA Court Judges.
i'm with ya' bra'...

let's put all the unemployed to work: stalking EVERY single kongresskritter, judge, and admin official and SHAMING THEM MERCILESSLY...
...and i mean MERCILESSLY: we 99% have been shown no mercy, now let's golden rule'em and see how they like it...

fuckers, and THEY call themselves patriotic americans upholding the law...

art guerrilla
aka ann archy
eof
[ link to this | view in thread ]
Dirkmaster (profile), 3 Jul 2013 @ 11:30am

Re:
did you forget your /s?

Because really, how can a "thoughtful jurist" make a statement that she took part in an adjudication that had only one side? What the fuck kind of adjudication is that?
[ link to this | view in thread ]
Anonymous Coward, 3 Jul 2013 @ 12:40pm

Such a disconnect all the way around...
Anyone happen to catch Wanda Sykes on Leno?

http://www.hulu.com/watch/506279#i1,p0,d1

I was shocked by this whole discussion and attitude.
[ link to this | view in thread ]
Anonymous Coward, 5 Jul 2013 @ 2:07am

Re: Such a disconnect all the way around...
It's really amazing watching leftists justify the actions of Obama's administration. Just picture the outrage if this had been on GWB's watch.
[ link to this | view in thread ]
Uriel-238 (profile), 6 Jul 2013 @ 7:41pm

Re: Re: Such a disconnect all the way around...
It's really amazing watching leftists justify the actions of Obama's administration.

Well this part of Team Left is pissed off because Obama's justification for monitoring Americans is not very Leftlike at all. Civil liberties usually means the gummint staying out of our shit.

(Neither does this part of Team Left condone gun control on account that sometimes crazy people shoot up schools.)
[ link to this | view in thread ]
ishaq abdulrafiu, 25 Sep 2013 @ 3:37am

Re: Human beings, huh?
i want to be part of aye court
[ link to this | view in thread ]