
America’s FISA court names five lawyers as public advocates - hackuser
http://arstechnica.com/tech-policy/2015/11/americas-super-secret-court-names-five-lawyers-as-public-advocates/
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timtas
> 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
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
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
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.

~~~
timtas
Not quite no one. Certainly applicants themselves are privy to the details of
cases they themselves bring. I guess applicants are always agencies of the
executive branch.

Is that where it stops? I wonder, do FBI agents discuss details of it's FISC
cases with, for instance, NSA agents? And can the FBI, for instance, obtain
details of a FISC case brought by, for instance, the NSA?

------
paulsutter
> 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.

------
brianclements
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
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
>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.

~~~
tptacek
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.

~~~
digler999
Too bad everything is done in secret so we will have to rely on
"interpretations" to _guess_ whats actually going on. What a coincidence.

~~~
tptacek
Serious question --- and I will probably agree with your answer, I think ---
how else _could_ it work? We're talking about surveillance of foreign
terrorist and weapons proliferation networks. What's the part of this that
_shouldn 't_ be secret?

~~~
Spearchucker
It's not black and white. It should be secret for a specified period of time,
and then declassified. After all, the secrecy of "take Biggin Hill" only has
value until the order is executed.

The "period of time" needs to be short - in the 12-to-24 month range, rather
than the 50-100 year range.

~~~
tptacek
The US effort to disrupt Al-Qaeda is over a decade old. At what point in that
effort does the public interest in tracking what NSA/DOJ/CIA is doing override
the public interest in not compromising sources and methods for what is still
a very real threat to the world?

Maybe a model statute that required the USG to (a) declare its surveillance
objectives publicly (it's no secret that we're after AQ and ISIS, nor should
the USG get to be secretive about its broad objectives) and (b) limit use of
the FISC process to targets operationally relevant to those objectives.

But while I would be happier with that kind of transparency, I think people
actually involved with surveillance would say it's just window dressing,
because the totality of the FISC process and the 2001 and 2003 AUMFs has the
same effect.

~~~
ENOTTY
The US makes no secret of the broad objectives of its intelligence program.
See
[http://www.dni.gov/files/documents/2014_NIS_Publication.pdf](http://www.dni.gov/files/documents/2014_NIS_Publication.pdf)
(page 10).

------
rayiner
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
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
When police want a warrant to search your house, there's no public interest
advocate on the other side of the DA.

~~~
jonlucc
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
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.

