FISA Court Bans FBI Agent Who Lied To The Court About Carter Page

from the are-you-accepting-applications-for-FISA-court-moderators? dept

The FBI's inability to rein in its agents is causing it more pain. The Inspector General's report released late last year showed agents performed some very selective editing of probable cause to unlawfully prolong the FBI's surveillance of former Trump adviser, Carter Page.

Omitting evidence agents had on hand that Page was not acting on behalf of a foreign power, agents repeatedly extended FISA wiretaps, allowing FBI spooks to continue unjustified domestic surveillance. If you like your Deep State Conspiracy, you can keep it.

But the most probable motivating factor isn't FBI agents' personal dislike of Donald Trump. It's more likely their all-encompassing love of surveillance. The FBI (along with the NSA) has abused the FISA court for years, allowing both agencies to perform domestic snooping under the guise of securing the nation from foreign threats. An agency that's willing to pursue "lying to a federal agent" charges when it's unable to find anything else to go after targets with is one that's willing to engage in surveillance long after it knows continued snooping will fail to uncover evidence of criminal activity.

The FBI has already been told to revamp its warrant request procedures to ensure this abuse doesn't happen again. More significantly, the Inspector General has recommended one FBI official for prosecution after emails were altered to hide wrongdoing from the IG and (presumably) the FISA court. The FISA court went so far as to question nearly everything the FBI has brought to it, given the evidentiary cherry-picking uncovered by the IG's investigation.

In what is possibly a first in FISA court history, the court has banned certain FBI agents from submitting warrant applications to the court. Charlie Savage reports on the latest federal embarrassment.

A secretive federal court on Wednesday effectively barred F.B.I. officials involved in the wiretapping of a former Trump campaign adviser from appearing before it in other cases at least temporarily, the latest fallout from an internal inquiry into the bureau’s surveillance of the aide.

Judge James Boasberg's order [PDF] accepts the FBI's suggested FISA surveillance remedies, but goes further by offering one of the judge's own: the booting of agents shown to have lied to the court to continue surveillance of Carter Page. He also accepted a recommendation from an appointed adversarial party -- FISA expert David S. Kris -- who suggested the FBI agents who submit affidavits sign those affidavits themselves (rather than field supervisors who may have no idea about the particulars of the request). This makes those agents directly responsible for the factual content (or lack thereof) of the assertions made to request (or extend) wiretaps.

Boasberg's ban goes further than the agents implicated in the latest FBI/FISA bullshittery. Anyone else who fucks up will find themselves on Boasberg's ban list as well.

Judge Boasberg’s new order also directed that no Justice Department or F.B.I. officials “under disciplinary or criminal review relating to their work on FISA applications shall participate in drafting, verifying, reviewing or submitting such applications to the court.”

This won't completely fix the FBI's reluctance to engage honestly with courts. But it will at least head off future abuse of the FISA court for the time being. The only other thing limiting the FBI's malfeasance is Congress itself. Another renewal of surveillance powers is playing out against this backdrop, giving finger-to-the-administration's-wind politicians reasons to bypass a clean reauthorization of (abused) powers. Politically popular reforms may be on the way. While we'd rather see bipartisan recognition that we handed federal agencies way too much power after the 9/11 attacks nearly 20 years ago, we'll also take what we can get -- especially when these restrictions will roll over into the next administration.

Filed Under: 4th amendment, carter page, fbi, fisa court, fisa warrants, rubber stamp, surveillance

In Harris County, Texas, The Death Penalty Is Applied With A Judicial Rubber Stamp

from the they're-just-convicts.-why-try-harder? dept

When life is literally on the line, Texas judges are slouching their way towards another paycheck.

In these cases, Harris County post-conviction prosecutors have authored and proposed 21,275 separate findings of fact and conclusions of law and the Harris County courts have adopted 20,261 of the prosecutors’ proposed findings verbatim: an adoption rate of 95%. In fact, judges in Harris County have adopted all of the prosecutors’ findings verbatim in 183 out of 191 sets of findings, or 96%. In the vast majority (167) of those cases, the judges simply signed the state’s proposed document without changing the heading.

The research conducted by Jordan Stelker, James Marcus, and Thea Posel -- a review of 199 capital post-conviction cases that flowed through Harris County's (TX) massive broken court system -- also notes that eight Harris County courts never rejected the state's conclusions, even when the findings were "plainly contradicted by the record."

The full report [PDF] contains details of handful of cases where the rubber stamp was applied by judges with genuine indifference to the people they were sentencing to death. In many of these cases, no consideration was given for convicts' mental health problems, traumatic childhoods, good behavior while incarcerated, or anything else that may have proved mitigating.

[T]he findings of fact and conclusions of law in Dexter Johnson’s case suggest that the problem of one-sided rubber-stamping may be more prevalent than a review of document headings would indicate. Instead of a signed copy of the prosecutor’s proposed findings summarily adopted as the findings and conclusions of the trial judge, the findings of fact and conclusions of law document in Johnson’s case is captioned “The Trial Court’s Findings of Fact and Conclusions of Law and Order of the Court.” However, a line-by-line comparison against the state’s proposed findings and conclusions indicates that the two documents are entirely identical in substance, with the exception that the court’s findings do not bear the prosecutor’s signature block or certificate of service and the spacing has been rearranged to make up for the extra room left at the bottom of the last page by the omission of the signature block. The prosecutor’s proposed findings and the trial court’s adopted findings are written in the same distinctive font and share the same mistake in numbering in the final set of conclusions of law. Both sets are file-stamped on February 24, 2010, and Judge Denise Collins signed the document captioned “The Trial Court’s Findings” on the same day.

Not even a copy-paste job. Just some mild alteration to transpose the judicial approval over the prosecution's signatures. Taking the state's version verbatim meant ignoring all of this:

The issues in Johnson’s case were not boilerplate—he had a history of low IQ scores, schizophrenia, brain damage, and learning difficulties, and the claims raised in his habeas application attack both the voluntariness of his statements to police and the effectiveness of his appellate counsel.

And the date on the rubber-stamped document means something shady happened in that judge's court.

However, circumstances indicate that the trial judge either signed the findings authored by the state the very same day they were filed (changing the heading herself), received an ex parte copy of the state’s proposed findings to consider before they were filed with the court, or was provided with a clean and revised copy of the state’s proposed findings by the prosecutor to further streamline the rubber-stamping process.

As the report points out, several factors have contributed to same-day service from Harris County judges and their rubber stamps. First, an inordinate amount of capital cases are routed through these courts as the result of jurisdiction allocation. A well-intentioned effort to keep capital reviews close to the courts of conviction was supposed to allow judges already familiar with these cases to make decisions on post-conviction habeas corpus reviews. Instead, it has just created a backlog of cases in courts already stymied by the lack of clerks.

But the biggest reason for Harris County rubber-stamping is this: zero accountability.

The CCA (Court of Criminal Appeals) is no doubt aware of the ubiquity of rubber-stamping and yet affords deference to such findings in the same manner as those produced after more extensive, independent proceedings (evidentiary hearings followed by independent court-drafted orders). Similarly, federal courts within the Court of Appeals for the Fifth Circuit routinely defer to fact findings contained in rubber-stamped state-proposed orders, insisting such deference is mandated by the federal habeas statute. So long as rubberstamping continues to receive the imprimatur of the CCA and the federal courts, state post-conviction judges have little incentive to abandon the practice.

It's not a justice system. It's a rigged game where the prosecution runs the table nearly 100% of the time. And it's happening in a state that has always taken time to brag about how many criminals it puts to death. The state's courts are complicit in the removal of anything adversarial from a supposedly adversarial process. The system in Harris County appears to be broken at every level, starting with the routine jailing of the presumptively innocent (thanks to absurdly-high bail amounts and an adamant refusal to release arrestees on their own recognizance) and running all the way up to the rubber-stamping of prosecutors' paperwork in death penalty cases.

Filed Under: death penalty, harris county, rubber stamp, texas

Disrupting The Fourth Amendment: Half Of Law Enforcement E-Warrants Approved In 10 Minutes Or Less

from the local-speedreading-champion-makes-good! dept

Law enforcement officers will often testify that seeking warrants is a time-consuming process that subjects officers' sworn statements to strict judicial scrutiny. The testimony implies the process is a hallowed tradition that upholds the sanctity of the Fourth Amendment, hence its many steps and plodding pace. The problem is law enforcement officers make these statements most often when defending their decision to bypass the warrant process.

Criminals move too fast for the warrant process, they argue. Officers would love to respect the Fourth Amendment, but seem to feel this respect is subject to time constraints. Sometimes they have a point. And when they have a legitimate point, they also have a legitimate exception: exigent circumstances. In truly life-threatening situations, the Fourth Amendment can be shoved aside momentarily to provide access to law enforcement officers. (The exception tends to swallow the rule, though. Courts have pushed back, but deference to officers' assertions about exigency remains the status quo in most courtrooms.)

The exigent circumstances exception remains intact, something law enforcement can lean on when the warrant process takes too long. When lives or evidence are at stake, sometimes corners have to be cut to ensure officers can get their man/woman and any evidence on hand. But the oft-stated claim that warrant acquisition is a long and difficult process is undercut completely when underlying facts about warrant approval are examined. Jessica Miller and Aubrey Weaver of the Salt Lake City Tribune took a close look at electronic warrants approved by Utah judges and found even the most exigent of exigent circumstances rarely evolve faster than warrants can be obtained.

Twenty-seven seconds.

That’s all the time it took for a Utah judge to sign off on an officer’s request to search phone records in a homicide investigation.

In another case, it took 38 seconds to get a warrant to search a hard drive.

And 48 seconds after asking, a judge gave permission for officers to break into a safe.

These instances, in which a judge approves a search warrant in less than a minute, are rare. There were two dozen in the more than 8,400 electronic warrants served in a 12-month period beginning April 2016.

But more than half were approved in 10 minutes or less.

That's not scrutiny. That's a rubber stamp. Add to this the fact that less than 2% of these requests were rejected and you have a warrant pipeline with minimal "checks and balances" interference. Utah's e-warrant system allows judges to review and respond to warrants via email and text messages, which trims a bit of time out of the process. But there's not much in the stats that indicates warrants are subjected to the sort of scrutiny the Fourth Amendment demands. The problem for citizens is that once a warrant is granted, it can be almost impossible to suppress the evidence in court. Even if the warrant is deemed deficient, the judge's signature often pushes courts towards granting officers "good faith," reasoning that officers don't have the legal expertise to second-guess a judge's thumbs up.

Despite the results of this investigation, representatives for law enforcement are still claiming the warrant system in place in Utah is safeguarding residents' rights.

Getting a search warrant is not as simple as people might think, said Brent Jex, president of the Utah Fraternal Order of Police. After an officer writes the warrant, it goes through a supervisor and oftentimes is reviewed by a prosecutor before it is submitted to a judge. Along the way, Jex said, the officer is questioned about the facts of the case and whether there is evidence of a crime.

“It’s a pretty heavy weight that we take pretty seriously,” he said. “That’s why we have such a vetting process to get them. It’s not easy. Even what you’d think would be the simplest warrant to get, you have to jump through hoops.”

But the vetting process asserted here isn't backed by legal statutes. The state doesn't require officers to bring warrants to prosecutors first, nor does it require review by higher-level police personnel before it's handed to a judge for approval. In some jurisdictions, the multi-level review claimed by the FOP president is commonplace. In others, officers pick and choose when they will seek additional review of warrant requests.

The problem with this system is these judges are the first safeguard of Fourth Amendment rights. Law enforcement may craft warrants with these rights in mind, but the ultimate goal is to get judicial approval to enter areas protected by Constitutional rights. Challenging warrants after they've been served is a difficult task and it requires a lot of time (and money) to do it successfully. It also may require the accused to spend a lot of time incarcerated while waiting for the trial process to play out. Dangling a steep sentence reduction in exchange for a guilty plea often results in innocent-until-proven-guilty defendants relinquishing their rights and giving officers a free pass on questionable warrants.

While the move to electronic warrants is a given, the fact they're delivered by email or text message doesn't mean they should be subjected to less scrutiny. And there's nothing in the investigation suggesting that this is the case. But that's not good news. All that means is the old system -- with its printed paper and face-to-face meeting with judges -- moved just as quickly. The level of scrutiny is likely the same as it was prior to the move to e-warrants. The only difference is the public can now see just how fast warrants get approved, thanks to electronic time stamps. This investigation likely won't result in more judicial scrutiny of warrants. What it might do, however, is lead to calls by law enforcement to block the release of this info in the future.

Filed Under: 4th amendment, approvals, rubber stamp, warrants

Documents Show FISA Court Refusing To Grant FBI's Requests To Scoop Up Communications Along With Phone Metadata

from the rubber-stamp-runs-dry dept

A handful of FOIA documents [PDF] obtained by EPIC (Electronic Privacy Information Center) are shedding some new light on the FISA court and its relationship with the FBI. The good news is that the court is not quite the rubber stamp it's often been portrayed as. Even though a vast majority of requests are improved, there appears to be a significant amount of modification happening behind the scenes.

The documents reveal that the Foreign Intelligence Surveillance Court (FISA) told the FBI several times between 2005 and 2007 that using some incidental information it collected while monitoring communications in an investigation — specifically, numbers people punch into their phones after they’ve placed a call — would require an explicit authorization from the court, even in an emergency.

The FBI wanted to trap these digits using its pen register orders, which are only supposed to provide numbers called and received. This additional information had been considered "content," as these post-cut-through digits could reveal details such as credit card info or social security numbers.

The FBI's collection of content -- along with the call metadata it was actually authorized to receive -- appears to have continued until a FISA judge finally asked it what it was doing with this "incidentally collected" content. The DOJ, of course, argued that is was entitled to this information.

In May 2006, the government told the court that it had the authority to collect that sensitive information, and would “in some cases … specifically seek authority for secondary orders requiring a service provider to provide all dialing, routing, addressing or signaling information transmitted by a target telephone, which, in light of technological constraints, may include content and non-content digits alike,” the report continues.

It also claimed that, although it specifically sought to collect this info with modified pen register orders, it was only accessed for a limited number of reasons: national security, emergencies, exigent circumstances, etc. The FISA court doesn't appear to have believed the FBI's claims that it was seeking this information just to use it only in the rarest of circumstances.

The court “had made modifications to the government’s proposed pen register orders,” reads the biannual report to Congress obtained by EPIC. “Although the [FISA Court] has authorized the government to record and decode all post-cut-through digits dialed by the targeted telephone, it has struck the language specifically authorizing the government to make affirmative investigative use of possible content” unless permission is specifically granted by the court.

This pushback wasn't just limited to the nation's most secret court. The FBI also met resistance at local levels when trying to scoop up content with its metadata.

In July 2006, a magistrate judge in Texas denied an application for a pen register because filtering technology would not eliminate the additional content information.

This lower-level refusal was addressed by the FISA court, which asked the FBI how it expected this magistrate's refusal to affect its FISA court requests. The FBI replied it no longer had to worry about it as revisions to the US Patriot Act had given it permission to collect it all -- even stuff the agency treated as content when crafting its altered pen register requests.

This failed to move the court. It also failed to alter the FBI's tactics. The FBI continued to submit requests for post-cut-through content and the court, quite frequently, continued to strip this part of the agency's request from its approved orders. After several years, this became standard operating procedure for the FISA court, which instituted a blanket refusal on FBI requests for post-cut-through content, even for "emergency" reasons. This resistance is likely what prompted the FBI to turn something it wasn't being allowed to obtain into formal agency policy by 2011.

The new documents shed some new, somewhat surprising, light on the inner workings of the mostly-opaque FISA court, showing that it is not always inclined to give the government what it wants. It also shows the government doesn't seem to handle rejection very well, having to be told "no" repeatedly before the message sinks in.

Filed Under: fbi, fisa, fisa court, fisc, mass surveillance, metadata, requests, rubber stamp, surveillance

US Courts' Wiretap Report Shows Wiretaps Are For Drugs And Warrants Are Rejected Only .03% Of The Time

from the so,-those-seven-were-like,-processing-errors-or-something? dept

The US Courts system has just released its annual report on wiretap warrants. As you'll recall, warrants are those quaint permission slips that law enforcement officers occasionally seek before performing searches. (Although it looks as though they'll be doing it more frequently from now on…)

Not included in this report are outlying actions by agencies whose rogueness has been codified. The US Courts FAQ on the report points out that data from the FISA court is not included. Presumably, the previously illegal warrantless wiretaps deployed by the federal government aren't being tracked either, because if there's no warrant, there's no court. And if there's no court, there's no oversight.

Also not included are pen register/trap and trace orders, which are basically given the same amount of scrutiny that subpoenas and NSLs are given: very little, if any.

No report to the AO is required for the use of a pen register (a device attached to a telephone line that records or decodes impulses identifying the numbers dialed from that line) unless the pen register is used in conjunction with any wiretap devices whose use must be recorded. No statistics are collected on the number of devices used in conjunction with each order.

The US Courts system has handily provided ten years of data on wiretap warrants and everything in it points to one thing -- US law enforcement is almost exclusively focused on fighting the War on Drugs.

Of the 22,741 warrants issued since 2003, 21,838 (96%) were issued under the heading of "Narcotics." And the warrants themselves are ridiculously easy to obtain (giving lie to law enforcement's complaints about the complexity of securing a search warrant). To obtain these 22,741 warrants, 22,748 applications were submitted. Only 7 applications have been rejected since 2003, giving law enforcement a batting average of .99969.

So, we know drugs are big business for law enforcement. At an average of $41,119 per intercept deployed, expenses for just the drug-related wiretaps in 2013 easily tops the $100,000,000 mark, and that's assuming all of those adhered to that average (the average was taken from 2,069 wiretaps where costs were reported.) The cost per intercept seems to be coming down (it was over $62,000 in 2003) but the number of intercepts has doubled over the same time period. The US Courts' information page also notes that further expenses are often reported after the reporting period has ended. (It points to an additional $62 million in expenses reported in 2013 for wiretaps issued in previous years.) Drugs are not just a multi-billion dollar business for distributors. With this intense focus on one particular form of crime, law enforcement has become just as big a "customer" of the drug business as drug users.

That data may not be particularly surprising, but it does reveal just how much attention is being paid to a narrow range of criminals. Nowhere does the report indicate anything has been deployed to combat terrorism, which is often the stated reason for obtaining bigger and better ex-military weapons and vehicles. It could be that wiretaps issued for counterterrorism are hidden under other designations or done without court approval. Or it could be that there's simply not nearly as much domestic terrorism activity as law enforcement officials claim.

The more surprising data, especially when coupled with the fact that US courts have only rejected .00031 of the wiretap applications that cross their desks, is the sheer number of people and communications being swept up by single warrants.

San Mateo County, California had only one wiretap warrant issued (probably related to the investigation of Sen. Leland Yee), but it was able to put a whole lot of people under surveillance with that single document. Its single intercept gathered communications from 588 people, with a total of 19,477 interceptions… of which only 513 proved to be incriminating. (It should be noted that intercepted communications can also include text messages, a form of communication that can easily cause these numbers to swell to ridiculous proportions.)

Likewise, Franklin County, Ohio also sought only one wiretap order, but it, too, had a huge payoff -- 551 people, 9,654 communications with 454 deemed incriminating (most likely related to this drug bust).

But with all these large numbers and expenses come massive amounts of arrests and indictments, right?

Well, not really. Even accounting for the fact that it can take years before the results of an investigation result in jail time, the percentage of convictions resulting from wiretap-related arrests seems to be hovering right around 45%. And the number of arrests is far smaller than number of people whose communications were intercepted during the course of the investigation.

In 2003, 167,272 people had their communications tapped (with 4.3 million communications intercepted) but this has only resulted in (to date) 5,705 arrests and 2,523 convictions. 2004 was even worse, with 215,460 people surveilled (5.1 million communications intercepted). The end result, a decade on? 6,717 arrests and 2,815 convictions.

If these patterns hold (and there's no evidence they won't), the hit rate of wiretap deployments will continue to fall, at least in terms of arrests and convictions. The average number of people tapped by an order last year was "only" 97 (the number has hovered between 100-110 over the course of the last decade) but the average number of communications harvested from each wiretap has been increasing over the past several years. Last year, it was 4,558 communications per wiretap (2003/2004 were 3,004/3,017 per) and the number of wiretaps issued has more than doubled in that same period. 2013's numbers are astounding: 346,872 people surveilled with 16,299,408 communications intercepted, with less than 3 million declared "incriminating."

Within those numbers is another interesting fact: encryption is rarely used and even when it is, it's rarely effective.

The number of state wiretaps in which encryption was encountered increased from 15 in 2012 to 41 in 2013. In nine of these wiretaps, officials were unable to decipher the plain text of the messages. Encryption was also reported for 52 state wiretaps that were conducted during previous years, but reported to the AO for the first time in 2013. Officials were able to decipher the plain text of the communications in all 52 intercepts.

Contrast this minimal number with the thousands of devices tapped with the claim made by the US government (in the US v. Wurie warrantless cell phone search case) that requiring warrants would put law enforcement at the mercy of tech-savvy criminals.

[S]earching an arrestee's cell phone immediately upon arrest is often critical to protecting evidence against concealment in a locked or encrypted phone or remote destruction.The numerous party and amicus briefs in these cases have not seriously undermined that fundamental practical point. Although the briefs identify various techniques to prevent the remote-wiping problem (none of which is close to perfect), they barely address the principal problem that the government identified: automatic passcode-locking and encryption.

There is no tech arms race. Encryption was encountered 41 times durings the states' surveillance of over 200,000 people. The encryption "held" only nine times. All fifty-two times the federal government encountered it during its surveillance of millions of people over the last several years, it was able to defeat it.

The US Court system has proven indistinguishable from the FISA Court with its approval rate that's only .03% away from 100%. Likewise, the surveillance it approves sweeps up tons of "incidental" communications from completely innocent parties. The end result, however, is possibly more futile than the War on Terror. The Drug War isn't headed for a win, nor will it ever be. It will never even be a tie. This has gone on for 40 years and the only "benefit" has been increased budget lines for law enforcement agencies and the steady militarization of local police forces. Billions of dollars in taxes are being poured into a battle many Americans don't feel is worth fighting, while the system itself remains largely insulated against public opinion. Judges are granting nearly anything as long as the word "drugs" appears on the request and law enforcement agencies know this.

If nothing else, this reports shows that law enforcement should never have a problem with seeking a warrant. Even large-scale surveillance efforts (like the sweeping up the communications of 500+ people with a single wiretap request) are flying through the court system without a hitch.

Filed Under: drugs, law enforcement, rubber stamp, us courts, warrants, wiretaps

FISC Rubber Stamp Still Getting A Workout: Not A Single Application Rejected in 2013

from the good-to-spy dept

This shouldn't be a huge surprise, but it appears that the old trusty rubber stamp at the FISA Court is still working quite well. In 2013, despite widespread criticism over its previous "perfect record," the FISA Court continued its streak and approved every single one of the 1,655 applications to get information on people. That means there hasn't been a rejection in four years. That said, as FISC defenders have pointed out, the court does push back on some requests, and require them to be amended. One potentially good note is that out of 178 requests made for business records under Section 215 of the PATRIOT Act (the program used to collect bulk information), 141 were sent back by FISC for modifications. It seems likely that at least some of those modifications are part of the Snowden effect.

Filed Under: approvals, doj, fisa court, fisc, nsa, rubber stamp, surveillance

FISA Court Argues To Senate That It's Not A Rubber Stamp

from the sometimes-it-requests-changes dept

The FISA Court is still trying to shed its reputation as a rubber stamp. In a new letter, responding to questions from Senator Grassley, the court explains that, while it's true that it eventually approves basically all requests that the intelligence community brings before the court, that doesn't take into account the changes it requires. It starts out by noting, as it has previously, that the "over 99%" approval rate is only for "final applications" and doesn't fairly consider that it frequently asks for substantial changes. In response to that earlier statement, Senator Grassley had asked how many times does it ask for substantial changes, and the court sent back the following late last week:

During the three month period from July 1, 2013 through September 30, 2013, we have observed that 24.4% of matters submitted ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action. This does not include, for example, mere typographical corrections. Although we have every reason to believe that this three month period is typical in terms of the historic rate of modifications, we will continue to collect these statistics for an additional period of time and we will inform you if those data suggest that the recent three months were anomalous.

Of course, by July 1st, it's pretty clear that the FISC knew that it was going to be under substantial scrutiny concerning these efforts, and the whole "rubber stamp" discussion had already been widespread in the press. While the court insists that this is probably no different than in the past, the real question is what was it in the past... and there, the FISC admits, it has no idea. In responding to the request for historical data, it notes:

FISC [is] just beginning a practice of collecting statistics on the rate at which such modifications occur.

In other words, back before there was any public scrutiny, nobody much bothered to monitor these things and make sure that the FISC wasn't just a rubber stamp -- and there's no real way to go back and check.

Also, there's the whole question of how do you define "substantial." While the FISC at least admits the bar is higher than typographical corrections, it also admits that the rating is somewhat in the eye of the beholder:

It should be noted, however, that these statistics are an attempt to measure the results of what are, typically, informal communications between the branches. Therefore, the determination of exactly when a modification is "substantial," and whether it was caused solely by the FISC's intervention, can be a judgment call.

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

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

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.

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