I submitted a comment a few minutes ago to this effect, but it's as if it never happened, so here goes again. If it should reappear, please forgive the double-p

I submitted a comment a few minutes ago to this effect, but it's as if it never happened, so here goes again. If it should reappear, please forgive the double-posting. > The FISA process concerns surveillance of foreign nationals who enjoy extremely limited constitutional protections. It's unclear, from the public's perspective, that FISA warrants are only being directed against foreign entities. > People are fond of pointing out that the government rarely loses at FISA hearings. But as it turns out, of course, the government also rarely loses when it files for domestic wiretap authority. Relative to other transactions investigators and prosecutors have with the courts, the process of obtaining authority to wiretap is extraordinarily difficult; prosecutors don't waste time doing wiretap paperwork if they're not sure the request will be granted. Two different processes, neither of them adversarial, both of them secret, both of which produce an authority to surveil people. My question: why would the process that surveils foreigners without Fourth Amendment rights require a devil's advocate, when the domestic wiretap process has no such mechanism? I hate to keeping beating this horse. But the argument that domestic warrants are equally non-adversarial keeps coming up. So I guess the horse isn't dead. Domestic warrants are part of an adversarial process, if only after the fact. They are typically used to gather evidence for a criminal prosecution. When that happens, the defendant has a right to challenge the warrant. This serves as a counterbalance. Judges, prosecutors, and police know that a bad warrant will likely be thrown out if the criminal case is brought to trial. Thus, they have a very real incentive to write good, defensible warrants. This means it's to their advantage to keep their warrants narrow in scope. And thus the goal of preserving privacy is served. > I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one. Do you mean that there aren't incentives for the opponent of the warrant, or for the government? If the former, I can only point out that organizations like the ACLU can be quite zealous. I would much prefer advocacy by the ACLU than no advocacy at all. If the latter, the restraint would take two forms. First, judges and investigators would be aware that overbroad or otherwise improper warrants can be undone. This would incentivize writing good warrants. Second, the warranted surveillance could be halted upon a successful challenge, assuming said surveillance is ongoing. Both of these are meaningful checks.