4 ms·

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.

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.