11 ms·

America’s FISA court names five lawyers as public advocates

67 points by hackuser 11y ago

brianclements 11y ago
So if they really did pick an "impressive" list, I'm curious what their incentive was for doing so? What is that selection process and who does it? Anyone know?
- HillRat 11y ago
  It's a solid list of tech-savvy attorneys with strong pro-privacy backgrounds. The court appointed them; FISA judges are not, contrary perhaps to appearances, looking simply to rubber-stamp government requests for surveillance, but the lack of an adversarial system certainly has given that appearance to the proceedings. Adding a public-interest counterweight to something that has gone from an extraordinary venue to a routine investigatory tool can only increase the legitimacy of FISC.
  - us0r 11y ago
    >FISA judges are not, contrary perhaps to appearances, looking simply to rubber-stamp government requests for surveillance "In the court’s history, warrants (and related orders) are approved more than 99 percent of the time." Quite the appearance for judges who are not rubber stamping.
    - 1024core 11y ago
      I sort-of agree with you, but our system of jurisprudence is adversarial. If there's no one opposing a warrant, it's hard for the judge to take it upon himself to argue the counter. So, a set of impartial "people's advocates" would go a long way in cutting down this figure of 99%.
    - x1798DE 11y ago
      The argument I've heard is that the judges work with the agencies rather than outright reject them, skewing the statistics. The judges will say, "Come back with more evidence", and the agencies go out and do it. Not sure I believe that story, and even if it's true it's not a great idea to rely on the innate moral fiber of the judges, but that stat is not necessarily a smoking gun.
    - tptacek 11y ago
      This is a favorite statistic for advocacy reporters, but it has many different interpretations: 1. Perhaps FISA really does rubber-stamp all requests. 2. Perhaps NSA really is surveilling almost solely targets of real security interest. 3. Perhaps the FISA process and the documentation it generates forces NSA to be overly conservative about surveilling targets, to the detriment of security. 4. Perhaps NSA only uses the FISA process for targets of real security interest, and uses some other process for other targets. In fact, a 50/50 success rate at FISC would be disturbing for other reasons: it would imply that the USG was aggressively targeting people of no security interest, and only the FISC process was preventing that from happening.
      - Spearchucker 11y ago
        Given the US's abysmal human rights record in recent years I have to go with what Sam said - "Whenever there's doubt, there is no doubt". "Perhaps" is no longer enough to sway me. Apart from the reason already given, we the west are still suffering terrorist attacks, making the NSA (and GCHQ et. al.) wasted money.
      - timtas 11y ago
        Possibilities 2 through 4, while theoretically possible, are highly unlikely based on fairly basic observation of human nature and how secret power operates. And because it's all secret, we're entitled to make the most ungenerous guess.
        tptacek 11y ago
        That doesn't get you past the last point my comment raised. A lower success rate at FISC is also problematic.
        natch 11y ago
        You mentioned 50/50. The other poster mentioned 99 percent. Maybe something in between would not be problematic? Ninety percent approval? I'll acknowledge that we are of course just talking about red flags here at most. As an aside, I'd imagine that in previous days without these public advocates, the government would have bent over backwards in choosing submissions judiciously, to guard against the obvious perception that the court was being abused. But now perceptions are different, and they can (from a PR standpoint) afford a very small amount of fighting with the public advocates. So maybe now they'll push the envelope a very slight bit, see where the boundaries are.
    - afarrell 11y ago
      The vast majority of non-FISC warrants are also granted. The reason is that prosecutors don't want a reputation for wasting time or getting their evidence overturned. The problem with the FISA court is that it lacks oversight provided by publicly-readable appeals. This, legal scholars have no way to debate if warrants are valid or invalid.
rayiner 11y ago
So now, surveilling a suspected foreign terrorist requires more process than has ever been required to secure a search warrant for a domestic suspect.
- mtgx 11y ago
  How do you figure? These lawyers aren't there to defend or attack anyone in particular, but to defend or attack a certain process of collecting data, if they believe what the government is doing is unlawful.
  - rayiner 11y ago
    When police want a warrant to search your house, there's no public interest advocate on the other side of the DA.
    - jonlucc 11y ago
      But presumably that will eventually end up in an adversarial court? It's only secret until it's used as evidence. The NSA's targets will likely never get to defend themselves or debate the legality of the collection of evidence.
      - simoncion 11y ago
        Your last sentence is pretty key. It's outrageously difficult for US citizens to bring a case against illegal or questionably-legal domestic use of our foreign intelligence gathering programs, tools, and/or assets.
    - orf 11y ago
      There is also no secret court that rubberstamps all requests made, no matter how ridiculous.
      - tptacek 11y ago
        Search and wiretap warrant requests are secret (until served), and are (especially in the wiretap case) approved the overwhelming majority of the time.
timtas 11y ago
> The new amici...will not represent specific clients. Let's be clear. These are friends of the court, not any kind of advocates. They work for the court. They are not adversaries to the executive. What, for example, will happen if the court systematically ignores them? Can they go to the media? What can they do but resign? That will make the nightly news and be forgotten by morning. This creature is called a "court," but, lacking adversarial advocates it's wholly an instrument of the executive branch. Adding some friends with impressive resumes does not change that.
- tptacek 11y ago
  It's fuzzy which branch FISC belongs to. It's staffed with Article III federal judges who are appointed by the Chief Justice, which makes its construction about as far from the executive branch as you can get. It oversees the NSA and CIA, which are controlled by the executive branch, and has no authority to hear cases. It hears only matters regarding foreign intelligence, which puts its subjects outside the protection of the Constitution, which protections are most of the point of Article III courts. It is in that sense so difference from Article III courts as to make it a little unclear whether it is one. And it was created by Congress, as a way of delegating rulemaking about surveillance that was properly owed by Congress --- the FISA process was a way for the 1970s Congress to punt on the issue. Unlike other courts, Congress can abolish FISA tomorrow and replace it with a set of rules. It is in that sense entirely a creature of Congress. The FISC is weird, is what I'm saying.
  - timtas 11y ago
    Interesting background. Thanks. Here's my question. Exactly who outside of the court itself knows what it does? That is, what entities are privy to it's docket, rulings and the details of it's proceedings?
    - afarrell 11y ago
      I believe the answer is "no one." If I am correct, it is an abandonment of the thing that makes America the greatest country in the world: It's endless appeals system.
paulsutter 11y ago
> Top lawyers from the American Civil Liberties Union and the Electronic Frontier Foundation called these attorneys “impressive.” I dislike FISA as much as anyone, but I'm glad to hear the EFF is impressed with the attorneys. While the article is silent on their recourse if they are ignored, surely they can appeal to whoever in the administration did the hard work to get them there. Given their credentials, you can be sure there was a lot of opposition to this.

67 points by hackuser 11y ago

So if they really did pick an "impressive" list, I'm curious what their incentive was for doing so? What is that selection process and who does it? Anyone know?

HillRat 11y ago
It's a solid list of tech-savvy attorneys with strong pro-privacy backgrounds. The court appointed them; FISA judges are not, contrary perhaps to appearances, looking simply to rubber-stamp government requests for surveillance, but the lack of an adversarial system certainly has given that appearance to the proceedings. Adding a public-interest counterweight to something that has gone from an extraordinary venue to a routine investigatory tool can only increase the legitimacy of FISC.
- us0r 11y ago
  >FISA judges are not, contrary perhaps to appearances, looking simply to rubber-stamp government requests for surveillance "In the court’s history, warrants (and related orders) are approved more than 99 percent of the time." Quite the appearance for judges who are not rubber stamping.
  - 1024core 11y ago
    I sort-of agree with you, but our system of jurisprudence is adversarial. If there's no one opposing a warrant, it's hard for the judge to take it upon himself to argue the counter. So, a set of impartial "people's advocates" would go a long way in cutting down this figure of 99%.
  - x1798DE 11y ago
    The argument I've heard is that the judges work with the agencies rather than outright reject them, skewing the statistics. The judges will say, "Come back with more evidence", and the agencies go out and do it. Not sure I believe that story, and even if it's true it's not a great idea to rely on the innate moral fiber of the judges, but that stat is not necessarily a smoking gun.
  - tptacek 11y ago
    This is a favorite statistic for advocacy reporters, but it has many different interpretations: 1. Perhaps FISA really does rubber-stamp all requests. 2. Perhaps NSA really is surveilling almost solely targets of real security interest. 3. Perhaps the FISA process and the documentation it generates forces NSA to be overly conservative about surveilling targets, to the detriment of security. 4. Perhaps NSA only uses the FISA process for targets of real security interest, and uses some other process for other targets. In fact, a 50/50 success rate at FISC would be disturbing for other reasons: it would imply that the USG was aggressively targeting people of no security interest, and only the FISC process was preventing that from happening.
    - Spearchucker 11y ago
      Given the US's abysmal human rights record in recent years I have to go with what Sam said - "Whenever there's doubt, there is no doubt". "Perhaps" is no longer enough to sway me. Apart from the reason already given, we the west are still suffering terrorist attacks, making the NSA (and GCHQ et. al.) wasted money.
    - timtas 11y ago
      Possibilities 2 through 4, while theoretically possible, are highly unlikely based on fairly basic observation of human nature and how secret power operates. And because it's all secret, we're entitled to make the most ungenerous guess.
      - tptacek 11y ago
        That doesn't get you past the last point my comment raised. A lower success rate at FISC is also problematic.
        natch 11y ago
        You mentioned 50/50. The other poster mentioned 99 percent. Maybe something in between would not be problematic? Ninety percent approval? I'll acknowledge that we are of course just talking about red flags here at most. As an aside, I'd imagine that in previous days without these public advocates, the government would have bent over backwards in choosing submissions judiciously, to guard against the obvious perception that the court was being abused. But now perceptions are different, and they can (from a PR standpoint) afford a very small amount of fighting with the public advocates. So maybe now they'll push the envelope a very slight bit, see where the boundaries are.
  - afarrell 11y ago
    The vast majority of non-FISC warrants are also granted. The reason is that prosecutors don't want a reputation for wasting time or getting their evidence overturned. The problem with the FISA court is that it lacks oversight provided by publicly-readable appeals. This, legal scholars have no way to debate if warrants are valid or invalid.

rayiner 11y ago

So now, surveilling a suspected foreign terrorist requires more process than has ever been required to secure a search warrant for a domestic suspect.

mtgx 11y ago
How do you figure? These lawyers aren't there to defend or attack anyone in particular, but to defend or attack a certain process of collecting data, if they believe what the government is doing is unlawful.
- rayiner 11y ago
  When police want a warrant to search your house, there's no public interest advocate on the other side of the DA.
  - jonlucc 11y ago
    But presumably that will eventually end up in an adversarial court? It's only secret until it's used as evidence. The NSA's targets will likely never get to defend themselves or debate the legality of the collection of evidence.
    - simoncion 11y ago
      Your last sentence is pretty key. It's outrageously difficult for US citizens to bring a case against illegal or questionably-legal domestic use of our foreign intelligence gathering programs, tools, and/or assets.
  - orf 11y ago
    There is also no secret court that rubberstamps all requests made, no matter how ridiculous.
    - tptacek 11y ago
      Search and wiretap warrant requests are secret (until served), and are (especially in the wiretap case) approved the overwhelming majority of the time.

timtas 11y ago

> The new amici...will not represent specific clients. Let's be clear. These are friends of the court, not any kind of advocates. They work for the court. They are not adversaries to the executive. What, for example, will happen if the court systematically ignores them? Can they go to the media? What can they do but resign? That will make the nightly news and be forgotten by morning. This creature is called a "court," but, lacking adversarial advocates it's wholly an instrument of the executive branch. Adding some friends with impressive resumes does not change that.

tptacek 11y ago
It's fuzzy which branch FISC belongs to. It's staffed with Article III federal judges who are appointed by the Chief Justice, which makes its construction about as far from the executive branch as you can get. It oversees the NSA and CIA, which are controlled by the executive branch, and has no authority to hear cases. It hears only matters regarding foreign intelligence, which puts its subjects outside the protection of the Constitution, which protections are most of the point of Article III courts. It is in that sense so difference from Article III courts as to make it a little unclear whether it is one. And it was created by Congress, as a way of delegating rulemaking about surveillance that was properly owed by Congress --- the FISA process was a way for the 1970s Congress to punt on the issue. Unlike other courts, Congress can abolish FISA tomorrow and replace it with a set of rules. It is in that sense entirely a creature of Congress. The FISC is weird, is what I'm saying.
- timtas 11y ago
  Interesting background. Thanks. Here's my question. Exactly who outside of the court itself knows what it does? That is, what entities are privy to it's docket, rulings and the details of it's proceedings?
  - afarrell 11y ago
    I believe the answer is "no one." If I am correct, it is an abandonment of the thing that makes America the greatest country in the world: It's endless appeals system.

paulsutter 11y ago

> Top lawyers from the American Civil Liberties Union and the Electronic Frontier Foundation called these attorneys “impressive.” I dislike FISA as much as anyone, but I'm glad to hear the EFF is impressed with the attorneys. While the article is silent on their recourse if they are ignored, surely they can appeal to whoever in the administration did the hard work to get them there. Given their credentials, you can be sure there was a lot of opposition to this.