FISA Court Appears To Be Rubber Stamp For Government Requests

The Foreign Intelligence Surveillance Court has been under fire since one of its classified orders was leaked by a former National Security Agency analyst. Detractors have focused on the fact that nearly all the warrant applications brought before its judges have been approved.

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The NSA leaks revealing the broad extent of U.S. surveillance programs are also putting a spotlight on the special court that oversees them. It's called the Foreign Intelligence Surveillance Court. Created by Congress in 1978 to ensure the government doesn't abuse its surveillance powers, it operates in secret.

NPR's Dina Temple-Raston has this report on how the court works.

DINA TEMPLE-RASTON, BYLINE: The criticism of the Foreign Intelligence Surveillance Court is simple: that it's a rubber stamp, and that the government always gets what it wants. And here's a number that seem to support that: 1,856. That's the number of applications presented to the court by the government last year. And it's also the number that the court approved: 100 percent success.

But Joel Brenner, the former general counsel at the National Security Agency, says this is not proof that the FISA court is a rubber stamp.

JOEL BRENNER: I can tell you that that court has taken a wire brush to certain applications that have come before it. The idea that somehow they put their stamp on everything the government puts before them couldn't be farther from the truth.

TEMPLE-RASTON: To understand why every application seems to be approved, you have to understand how the process works. The government goes to the FISA court with a proposition. It tells the judge, for example, that the NSA wants to track the phone calls and emails of someone they say is vital to an international terrorism investigation. Basically, according to Brenner, the government says...

BRENNER: Here's what we'd like to do, and there follows a back and forth and a discussion with a FISA judge, who, in many cases, has serious questions about what is being done or how it's being done.

TEMPLE-RASTON: That FISA judge is a regular federal judge who presides over day-to-day criminal and civil cases. In a FISA case, that judge is supposed to question the government's case.

Mike German is with the American Civil Liberties Union, and he says that isn't enough.

MICHAEL GERMAN: These are federal judges, and deserve some respect. But it's the process that's broken.

TEMPLE-RASTON: German is a former FBI agent, and now the ACLU's senior policy counsel.

GERMAN: I don't think it's necessarily a rubber stamp, but it's just that it suffers from these fatal flaws.

TEMPLE-RASTON: There are two fatal flaws, according to civil liberties groups. The first is that the court is secret. To get an idea of how secret, the leaked document about the NSA asking to collect Verizon phone records was a FISA order. One had never been seen publicly before.

The second problem, the ACLU's Mike German says, is that the process isn't adversarial. There isn't the equivalent of a defense attorney to challenge the prosecution's version of events. It's just the prosecution talking to the judge - a little like the grand jury process.

GERMAN: You have a prosecutor who goes in a room with 23 grand jurors to indict somebody, but the process - because it isn't adversarial - often doesn't come to the right result.

JENNIFER DASKAL: There are certain things that just can't be adversarial. They don't work that way.

TEMPLE-RASTON: Jennifer Daskal teaches at Georgetown Law School and used to be a lawyer with Human Rights Watch. She also worked at the Department of Justice.

DASKAL: What you have, I think, is an incredible amount of secrecy about how the court works - often for good reason. But as a result, there is this misperception and fear and assumptions that the executive always gets what it wants, and that the executive is always overreaching, and overreaching more and more with time.

TEMPLE-RASTON: It may be there are other ways to measure whether the government gets what it wants from a FISA court. The Justice Department says it presented 212 requests to conduct surveillance in the U.S. to the FISA court last year. It says the court modified 200 of them before they were approved. The problem: the public doesn't know why these orders from the government were modified or how they were changed.

This week, senators introduced legislation that would declassify significant FISA court rulings.

Dina Temple-Raston, NPR News.

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