Former FISC Judge Quit Over Warrantless Wiretapping, Now Argues FISC Is Out Of Control

from the needs-an-adversary dept

Wed, Jul 10th 2013 7:51am — Mike Masnick

Last year, we noted that after five years of nothingness, despite what the law required, the federal government finally had a Privacy and Civil Liberties Oversight Board (PCLOB), after years of nominations that went nowhere. The PCLOB does now exist and has been charged with looking into the government's surveillance efforts. While the PCLOB does have some really good members who are strong privacy/civil liberties advocates, there are significant questions about how much authority it actually has. Still, on Tuesday, the PCLOB held hearings on the ongoing surveillance programs, and perhaps the most interesting thing to come out of them were the comments from James Robertson, a former FISC judge, who had quit the court, but had not spoken publicly about why until now.

Specifically, he claims that he quit because of revelations about the Bush administration using warrantless wiretapping and going around the court's approval process.

Robertson said he asked to join the FISA court "to see what it was up to," had previously played a central role in national security law. He was the judge who ruled against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld by the Supreme Court in 2006.

Robertson quit the FISA court in 2005, days after the New York Times revealed widespread NSA warrantless wiretapping under President George W. Bush's administration. Robertson had previously refused to explain his decision. But during a break in the hearing Tuesday he confirmed for the first time to the AP that he had "resigned in protest because the Bush administration was bypassing the court on warrantless wiretaps."

Robertson argued that the "rubber stamp" claims about the FISA Court were inaccurate, saying that they left out the fact that FISC frequently pushed back on requests, requiring changes from the government, which were not seen in the overall stats on requests "approved" by the court. That said, he notes that the approval/disapproval of warrants was supposed to be all that FISC was about -- but since the FISA Amendments Act of 2008, the role of FISC has changed entirely, from a narrowly focused court approving specific warrants to what is effectively a judicially run administrative agency designed to approve entire surveillance programs:

But he warned that Congress' 2008 reform of the FISA system expanded the government's authority by forcing the court to approve entire surveillance systems, not just surveillance warrants, as it previously handled. Under the FISA changes, "the court is now approving programmatic surveillance. I don't think that is a judicial function," he said.

Robertson said he was "frankly stunned" by a recent Times report that FISA court rulings had created a new body of law broadening the ability of the NSA to use its surveillance programs to target not only terrorists but suspects in cases involving espionage, cyberattacks and weapons of mass destruction.

This is a really key point that has not received nearly enough attention. Under the old rules, the FISC would look at specific warrants and approve or (rarely) refuse to approve those warrants. But now it basically is issuing a blanket "approval" of methods and techniques, such as the infamous dragnet of all information on all phone calls from various telcos. That's a really different function.

Furthermore, Robertson highlighted what many of us have been saying all along: when you have a secret court that only hears one side of a case, it should be no surprise that the court keeps pushing further and further in the direction of the single party (the government) that presents information before it. Robertson's suggestion to try to fix this is to somehow come up with an adversarial process -- whether it's (for example) someone from a public interest group, such as the ACLU, or someone appointed by the PCLOB itself, to act as an advocate for those on the other side of the government's surveillance desires.

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Filed Under: adversarial hearings, civil liberties, fisa court, fisc, james robertson, pclob, privacy, warrantless wiretapping

21 Comments

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Anonymous Coward, 10 Jul 2013 @ 8:39am

unfortunately that wont happen. there is no way that after years of trying to get exactly what it wants, the government is going to give it up without a hell of a fight. the only way to stop it is to stop all secret courts over all things. the USA is supposed to be a democracy, based on the will of the people. it has obviously strayed a long way away from that path but hacking down some undergrowth will enable it to return. the thing it needs more than anything else is to want to! if the people dont want to return to the way it was, the way it was meant to be, then pack up and ship out, because we are all truly lost, deserving nothing that resembles freedom and privacy!!
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Anonymous Coward, 10 Jul 2013 @ 9:53am

It's going to get far worse before it gets better because right now people do not see the effects of what the government is doing. It's sad because every single thing this country was founded on is being ripped apart.

Once the impact becomes noticeable by everyone shit will change. The only question is will it be too late?
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FM Hilton, 10 Jul 2013 @ 10:10am

Some cures
Forget about adding more government 'oversight' (stop me from laughing, ok?) and additional people to man it. There is a way to get all of this solved.

It will take a few things to get it done, though:

1. A court order (or Presidential, even better) to shut down all the spying programs and their necessary constructs.

2. Fire everyone in the NSA and the FISC-every single person, from the top on down. No revolving door. Force them to get out of the government, period. Prosecute those who have broken the law.

3. Tear down every single building that the NSA has erected to hold all that spy stuff.

4. Make a federal law to forbid this from ever happening again, and enforce it. Tell the CIA that they're on surveillance now, and if they even dare to go a step further, the same will happen to them.

5. Prosecute those in the telecom companies who aided and abetted with the NSA in their spying. Fine the crap out of them, too-and force them to make restitution to all those whose privacy they breached.

6. Prosecute all those in Congress who ignored all these warnings and information for so long. They aided and abetted in this criminal enterprise, too.

It's called "cleaning house", and that's the only way to get this solved.

Who's got the guts, though?
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Anonymous Coward, 10 Jul 2013 @ 10:20am

Re: Some cures
4 sort of seems like a waste of time. This stuff is already unconstitutional. The problem is the constitution doesn't, in practice, constrain these activities. Adding another mere law wouldn't accomplish anything if an existing constitutional amendment didn't.
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Anonymous Coward, 10 Jul 2013 @ 10:22am

Re: Some cures
5 seems unfair. The 'telecom companies' were literally threatened with force if they did not comply and remain silent. Someone puts a gun to your head and forces you to do something then they're really responsible for it.
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John Fenderson (profile), 10 Jul 2013 @ 10:29am

Re: Some cures
Steps 1 - 3 are of dubious effectiveness. As soon as all of those things are done, a brand new agency will be formed to perform the task that the defunct NSA/CIA/FBI/whatever agencies did.

Forget about adding more government 'oversight'

Steps 4-6 are government oversight.
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John Fenderson (profile), 10 Jul 2013 @ 10:33am

Re: Re: Some cures
The 'telecom companies' were literally threatened with force if they did not comply and remain silent.

Well, not literally. They were threatened with "soft" sanctions -- mostly the withholding of privileges -- not force.

I'm sympathetic to the argument that the poor telecoms are blameless, but not swayed by it. They could have done the right thing and resisted the demands. Some, like Qwest, did.

If you fail to do the right thing -- especially when doing the right thing is difficult or costly -- you're to blame.
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Anonymous Coward, 10 Jul 2013 @ 10:37am

Re: Re: Re: Some cures
Yes literally. How exactly do you think laws and court orders are enforced if not with the threat of force?
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Anonymous Coward, 10 Jul 2013 @ 10:39am

Re: Re: Re: Some cures
Doing the right thing in spite of being threaten with force shows character for sure but the opposite doesn't magically make you 'to blame.' Slaves aren't 'to blame' for their slavery simply because they don't resist.
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Anonymous Coward, 10 Jul 2013 @ 11:10am

Re: Re: Some cures
CIA is clearly restricted to non-US soil operations only and breaking that would be very problematic for them. So there is definitely a silverlining in it. Additionally the activities would have a much more targeted approach in avoiding problematic foreigners from entering USA. All in all it would be a huge improvement for everybody! There is the information sharing between CIA and FBI that will need to improve, but removing NSA as a self-sustaining service would probably make it easier since the waste on wrong chain of command in a given case will be lowered.
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John Fenderson (profile), 10 Jul 2013 @ 11:25am

Re: Re: Re: Re: Some cures
That's only for the little people. When it comes to big corporations, there is no threat of force, even in the derivative sense you state. There is a threat of financial penalties. If those penalties don't get paid, there are more financial penalties. At no point will a gun be held to anyone's head.
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John Fenderson (profile), 10 Jul 2013 @ 11:27am

Re: Re: Re: Re: Some cures
That's an apples and coconuts comparison. We're talking about people taking the blame for their overt actions, not people taking the blame for being subjugated.
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Anonymous Coward, 10 Jul 2013 @ 1:04pm

Re: Re: Re: Re: Re: Some cures
Taking property IS force. Gun to the head was melodrama (you got me) but it's the threat of force that leads to payment. If enough penalties aren't paid there absolutely will be physical violence and that's always the threat behind all fines.
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Anonymous Coward, 10 Jul 2013 @ 1:05pm

Re: Re: Re: Re: Re: Some cures
Subjugated fits in this context. Telecoms were clearly subordinated by government action.
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John Fenderson (profile), 10 Jul 2013 @ 1:16pm

Re: Re: Re: Re: Re: Re: Some cures
If enough penalties aren't paid there absolutely will be physical violence

Oh? Against who? Please name one example of this happening against a major corporation.
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John Fenderson (profile), 10 Jul 2013 @ 1:18pm

Re: Re: Re: Re: Re: Re: Some cures
Well, we emphatically disagree on this point. The telecoms were not forced, they willingly went along with it all -- as demonstrated by the fact that not all telecoms went along with it.
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John Fenderson (profile), 10 Jul 2013 @ 1:20pm

Re: Re: Re: Re: Re: Re: Re: Some cures
Ack, submitted too soon...

Also, there's still a difference between blaming someone for their passive condition (being a slave) and for their overt actions. If you're a slave and your master tells you to commit murder, you're not to blame for being a slave, but you are most certainly to blame if you commit the murder.
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Anonymous Coward, 11 Jul 2013 @ 4:31am

Re: Re: Re: Re: Re: Re: Re: Some cures
You seem to be confusing when the government bliffs dor when it can't use force. Tge threat exists even if they won't make good they legalky could.
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Anonymous Coward, 11 Jul 2013 @ 7:41am

Re: Re: Re: Re: Re: Re: Re: Re: Some cures
Ok so it appears, now that more facts are available, that your guess was closer to reality than mine. Philosophical distinctions aside I think this is clearly not a case where coercion by force was used or was even necessary so the discussion is moot. I feel it's safe to say they should be prosecuted in light of these facts. I also have a lot more respect for companies that refused to participate knowing they left vast quantities of money on the table at the same time.
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Anonymous Coward, 11 Jul 2013 @ 10:30am

tsk on fisc!
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Anonymous Coward, 12 Jul 2013 @ 9:25am

I'm glad someone's speaking out about this with knowledge of it!
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