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We do know who appointed them. They are 11 federal judges who are appointed to 7 year terms by the Chief Justice of the Supreme Court. At least 3 must live with

We do know who appointed them. They are 11 federal judges who are appointed to 7 year terms by the Chief Justice of the Supreme Court. At least 3 must live within 20 miles of Washington, DC, they can only serve one term, and none can be sitting on the Court of Review.

mindcrime 13y ago
I stand corrected. But the more important point is that the decisions and discussion are private and without oversight, and the presumption that they basically "rubber stamp" all these surveillance requests. Now, maybe they don't just "rubber stamp" everything. But without more info, who's to say? Edit: Also, for anyone more interested in details of the FISC (some of which I obviously misremembered), here's a good resource: http://epic.org/privacy/terrorism/fisa/fisc.html http://epic.org/privacy/terrorism/fisa/fisc.html
- tptacek 13y ago
  The rubber stamp argument is brandished in any discussion about FISA anywhere, from message boards to NPR. But it's not hard to see that there are at least two phenomenon that can account for it: (1) That FISA courts are not a meaningful check on the authority of NSA and the FBI to surveil people, or (2) That the overwhelming majority of FISA cases involve prima facie legitimate surveillance targets. I do not find (2) that hard to believe. I'm not a firm believer in FedGov competence, but I really don't think NSA analysts are making up random targets; neither, for that matter, does Snowden, who intimated as much when he was interviewed. (Just because I don't think surveillance in the 2000's has been abusive, it does not follow that I think we should be unconcerned with checks on surveillance).
  - dragonwriter 13y ago
    #1 is true whether or not #2 is true, because there is no adversarial process in the FISA courts. A one-sided legal process is never a meaningful check. With regular courts, even when the initial process is similarly one-sided (as it is with search and arrest warrants), the fact that the outcome will be subject to adversarial process down the road is something of a constraint (but, even then, I don't think anyone is going to be point to the regular warrant process as a particularly strong check on executive power.) The FISA warrant process, because of its secrecy and because it is generally not subject to downstream adversarial process, isn't a meaningful check. If the judges on the FISA Court are extremely diligent, it might be better than nothing, but given the secrecy around it, its unlikely that anyone not directly involved will ever really know whether or not it is (which is one of the things that makes it less likely that it will be.)
    - tptacek 13y ago
      How could there ever be an adversarial process for foreign intelligence surveillance? Can you explain how that could ever work?
      - dragonwriter 13y ago
        > How could there ever be an adversarial process for foreign intelligence surveillance? I didn't say their could be. Pointing out that the status quo structure doesn't provide a meaningful check doesn't mean that there is an easy framework that does provide a meaningful check while enabling the same scope of powers in "the right" kind of cases.
        tptacek 13y ago
        If I read your preceding comment and then this one, I'm left with the conclusion that you think either that there should be no foreign surveillance of any sort, or that any attempt to check the authority of our intelligence services is pointless.
        dragonwriter 13y ago
        Which illustrates why it is probably better to address what is said rather than what else you think a person might think in addition to what is said. EDIT: To amplify: I've explicitly laid out why the existing FISC system is not a meaningful check, and I have explicitly declined to take a position on whether it would be possible to reform the system in a way which would retain its essential character as a judicial oversight system while fixing the problems that prevent it from being meaningful oversight. We haven't addressed any other (e.g., non-judicial) checks, existing or potential, nor have I commented at all on what should exist. So your inference that I must believe certain things about what should exist, or that I have a particular belief about what checks are possible on foreign surveillance, is unwarranted.

mindcrime 13y ago

I stand corrected. But the more important point is that the decisions and discussion are private and without oversight, and the presumption that they basically "rubber stamp" all these surveillance requests. Now, maybe they don't just "rubber stamp" everything. But without more info, who's to say? Edit: Also, for anyone more interested in details of the FISC (some of which I obviously misremembered), here's a good resource: http://epic.org/privacy/terrorism/fisa/fisc.html http://epic.org/privacy/terrorism/fisa/fisc.html

tptacek 13y ago
The rubber stamp argument is brandished in any discussion about FISA anywhere, from message boards to NPR. But it's not hard to see that there are at least two phenomenon that can account for it: (1) That FISA courts are not a meaningful check on the authority of NSA and the FBI to surveil people, or (2) That the overwhelming majority of FISA cases involve prima facie legitimate surveillance targets. I do not find (2) that hard to believe. I'm not a firm believer in FedGov competence, but I really don't think NSA analysts are making up random targets; neither, for that matter, does Snowden, who intimated as much when he was interviewed. (Just because I don't think surveillance in the 2000's has been abusive, it does not follow that I think we should be unconcerned with checks on surveillance).
- dragonwriter 13y ago
  #1 is true whether or not #2 is true, because there is no adversarial process in the FISA courts. A one-sided legal process is never a meaningful check. With regular courts, even when the initial process is similarly one-sided (as it is with search and arrest warrants), the fact that the outcome will be subject to adversarial process down the road is something of a constraint (but, even then, I don't think anyone is going to be point to the regular warrant process as a particularly strong check on executive power.) The FISA warrant process, because of its secrecy and because it is generally not subject to downstream adversarial process, isn't a meaningful check. If the judges on the FISA Court are extremely diligent, it might be better than nothing, but given the secrecy around it, its unlikely that anyone not directly involved will ever really know whether or not it is (which is one of the things that makes it less likely that it will be.)
  - tptacek 13y ago
    How could there ever be an adversarial process for foreign intelligence surveillance? Can you explain how that could ever work?
    - dragonwriter 13y ago
      > How could there ever be an adversarial process for foreign intelligence surveillance? I didn't say their could be. Pointing out that the status quo structure doesn't provide a meaningful check doesn't mean that there is an easy framework that does provide a meaningful check while enabling the same scope of powers in "the right" kind of cases.
      - tptacek 13y ago
        If I read your preceding comment and then this one, I'm left with the conclusion that you think either that there should be no foreign surveillance of any sort, or that any attempt to check the authority of our intelligence services is pointless.
        dragonwriter 13y ago
        Which illustrates why it is probably better to address what is said rather than what else you think a person might think in addition to what is said. EDIT: To amplify: I've explicitly laid out why the existing FISC system is not a meaningful check, and I have explicitly declined to take a position on whether it would be possible to reform the system in a way which would retain its essential character as a judicial oversight system while fixing the problems that prevent it from being meaningful oversight. We haven't addressed any other (e.g., non-judicial) checks, existing or potential, nor have I commented at all on what should exist. So your inference that I must believe certain things about what should exist, or that I have a particular belief about what checks are possible on foreign surveillance, is unwarranted.