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.
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.
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?
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.
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.
Nothing I suspect. If other countries don’t want to join in then the NSA could be turned into a more effective version of wikileaks. While I doubt anything like this will ever happen, it certainly would be interesting.
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.
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.
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.
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%.
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.
"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.