According to one of the 11 judges that sits on the Foreign Intelligence Surveillance Court (FISC), no corporation ever served with a “business record” court order under the Patriot Act has ever challenged one, even though the law provides them a means to do so.

In other words, when the government asked Verizon to hand over call records and other metadata to the National Security Agency (NSA), the company did so without so much as a peep. Earlier this month, the Electronic Privacy Information Center filed an emergency petition to the Supreme Court to halt the entire metadata sharing program.

In a new 11-page letter published Monday from FISC Presiding Judge Reggie B. Walton to Sen. Patrick Leahy (D-VT), the judge writes, “To date no recipient of a production order has opted to invoke this section of the statute.” (Leahy is set to hold a senatorial hearing on the government surveillance program this week.)

Judge Walton refers specifically to 50 USC § 1861(f)(2)(A)(i), which states:

(i) A person receiving a production order may challenge the legality of that order by filing a petition with the pool established by section 1803 (e)(1) of this title. Not less than 1 year after the date of the issuance of the production order, the recipient of a production order may challenge the nondisclosure order imposed in connection with such production order by filing a petition to modify or set aside such nondisclosure order, consistent with the requirements of subparagraph (C), with the pool established by section 1803 (e)(1) of this title.

“This is not a typical judicial proceeding”

The FISC is one of the United States’ least publicly understood judicial entities. All of its 11 sitting judges, who serve seven-year terms, are appointed by the Supreme Court Chief Justice John Roberts. Ten of the 11 FISC judges are conservative Republicans.

Established under the Foreign Intelligence Surveillance Act (FISA) of 1978, the court’s mandate (among other things) is to approve special surveillance warrants for the NSA or the FBI against suspected foreign agents. Any of the eleven judges can then approve the warrant. Throughout the court’s history, warrants (and related orders) are approved more than 99 percent of the time.

The court’s decisions, orders, and warrants are supposed to be kept secret for 30 years. But last month, for the first time ever, FISC granted a motion to not block the disclosure of an earlier FISC opinion that declared parts of the NSA’s surveillance under Section 702 of the FISA Amendments Act to be unconstitutional. (The court’s publicly accessible docket is pretty short—in fact, its website didn't even exist until early June 2013.)

At least one member of the 1970s-era Church Committee told Ars that as it exists today, the FISC isn’t doing its job. That committee was a group of senators who convened solely to come up with remedies for the Nixonian abuses of power and intelligence gathering; their remedies included creating FISA and the FISC.

“The glass-half-full is that properly trained and qualified judges are hearing persuasive cases,” former Democrat Senator Gary Hart told Ars last month. “But as a lawyer, this is not a typical judicial proceeding that we're familiar with, because there's no other side. Unlike virtually everything else [in the legal system], it's not adversarial. The judge hears [the government’s case], but there's nobody else to argue the other side. If you're a constitutionalist as I am, that's disturbing.”

If at first you don’t succeed…

But the situation appears even worse than that. In this new letter, the judge also describes what appears to be a fairly cozy relationship between the FISC judge’s staff and government counsel.

Upon the Court’s receipt of a proposed application for an order under FISA, a member of the Court’s legal staff reviews the application and evaluates whether it meets the legal requirements under the statute. As part of this evaluation, a Court attorney will often have one or more telephone conversations with the government to seek additional information and/or raise concerns about the application. A Court attorney then prepares a written analysis of the application for the duty judge, which includes an identification of any weakness, flaws, or other concerns. For example, the attorney may recommend that the judge consider requiring the addition of information to the application; imposing special reporting requirements; or shortening the requested duration of an authorization. . . . The annual statistics provided to Congress by the Attorney General pursuant to 50 USC § 1807 and 1862(b)—frequently cited to in press reports as a suggestion that the Court’s approval rate of applications is over 99%—reflect only the number of final applications submitted to and acted on by the Court. These statistics do not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them.

In short, it appears that the government only submits applications that it knows will get approved—after having first gotten them modified to meet that approval. But some legal scholars say that if we are to believe that the FISC is acting as a check on the government, this type of back-and-forth isn't necessarily representative of a hand-in-glove relationship.

"One analogy would be an application for a warrant, either search or arrest," Ruthann Robson, a constitutional law professor at the City University of New York, told Ars by e-mail. "There is no opposition in a warrant application, and the judge is supposed to make an independent assessment, which would include raising concerns and could include revising the warrant. Indeed, the FISA process in many ways might be likened to a routine warrant application (and some argue that it should be more like our familiar criminal procedure process, as flawed as that might be). So while you are right that the judge and her/his staff could be seen to be 'helping' the government, it might be possible to read it as meaning the judge should be more skeptical of the government's application. But of course, it is going to depend upon the judge, and also how inured a judge could become, to these applications."

Another law professor agreed, but raised an eyebrow at this level of cooperation.

"Judges (or magistrates) often give the government feedback on warrant requests and the government then makes changes accordingly," wrote Fred Cate, a law professor at Indiana University in an e-mail sent to Ars. "Clerks assist in that process, sometimes by providing behind-the-scenes information to the government about what the judge will want to see. That said, the FISA still represents an unusual amount of cooperation between the requesting agency and the judge and in fact the two staffs work for the same agency, which is unusual."