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The problem is the FISC is not adversarial. In a normal court, these judges are used to dealing with the issues presented to them by both parties. Both parties

by jstalin 13y ago

The problem is the FISC is not adversarial. In a normal court, these judges are used to dealing with the issues presented to them by both parties. Both parties submit briefs, arguing both sides of the issue, and the judge applies the facts and law to the case based on the issues presented to them by the parties. Judges generally do not inject issues that aren't presented to them by the parties. In contrast, FISC is a one-sided event. Only the government presents its case and asks the judge to make a decision without any opportunity for any other party to make the other side of the argument. So it doesn't surprise me that the judges are just approving what the government asks for. It's similar to a legal default in any other court. When the other party doesn't show up, the party that's standing there wins, no matter what their argument is. It's automatic. EDIT: I should say that this is one of the problems with FISC court, not just the problem. A secret court is antithetical to an open and free society in the first place.

tptacek 13y ago
To repeat a comment downthread: I think the most deceptive thing about FISC is that it's not really a court. It happens to be staffed with federal court judges, and it can issue binding court orders on a limited set of subject areas, but that's it; in every other way, FISC functions as a form of internal review board. FISC exists because there is no Constitutional anchor to policies regarding foreign intelligence. Foreign powers do not have rights under the Fourth Amendment. No state really requires its spies to get warrants for all their foreign targets. But in the wake of the Nixon administration, Congress decided it needed some way to create and enforce policy for NSA. It can pass laws, but without an ongoing process by which NSA's actions are forced to engage those laws, they'd be toothless. So we get FISC, a sort of para-court.

by jstalin 13y ago

tptacek 13y ago

To repeat a comment downthread: I think the most deceptive thing about FISC is that it's not really a court. It happens to be staffed with federal court judges, and it can issue binding court orders on a limited set of subject areas, but that's it; in every other way, FISC functions as a form of internal review board. FISC exists because there is no Constitutional anchor to policies regarding foreign intelligence. Foreign powers do not have rights under the Fourth Amendment. No state really requires its spies to get warrants for all their foreign targets. But in the wake of the Nixon administration, Congress decided it needed some way to create and enforce policy for NSA. It can pass laws, but without an ongoing process by which NSA's actions are forced to engage those laws, they'd be toothless. So we get FISC, a sort of para-court.