Surveillance Court Relies on Whatever the Government Tells It, Says Chief Judge


U.S. District Judge Reggie B. Walton
Official government photo

Yesterday, Scott Shackford noted that the National Security Agency has violated legal restrictions on the use of its surveillance powers thousands of times just since 2008. This we know only because of documents from the treasure trove released by Edward Snowden. How could this be when NSA actions are overseen by the Foreign Intelligence Surveillance Court? As it turns out, the chief judge of the FISC admits the court relies almost entirely on the accuracy of what it's told by government officials.

According to Carol D. Leonnig at the Washington Post:

"The FISC is forced to rely upon the accuracy of the information that is provided to the Court," its chief, U.S. District Judge Reggie B. Walton, said in a written statement to The Washington Post. "The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders."

That's Judge Walton pictured, by the way.

The court's role, it seems safe to say, is to listen to government officials' assurances that everything they do is on the up and up, nod sagely, and then add a little judicial window dressing to whatever the surveillance state is up to.

Not so long ago, President Obama defended the U.S. government's surveillance procedures, saying:

[I]f people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure that we're abiding by the Constitution, due process and rule of law, then we're going to have some problems here.

Un-shockingly, given what we know about how it does its business, the Foreign Intelligence Surveillance Court has been called out as a rubber stamp that rarely rejects a surveillance request.

Mr. President, we have some problems here.

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  1. “The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie B. Walton, said…

    But, remember, the consequences of lying to the court are swift and harsh. So no one in the executive would dare do it.

  2. If you can’t trust the government, who can you trust?

  3. Every court is like that. That is why you don’t have ex parte communications. Both sides are there to keep each other honest. With only the government there, of course they were going to start lying. Why not?

    1. The judges outside of FISA courts, do they ever deny warrants, and if so, on what basis?

      1. They do and on lots of basis. The FISA court claims they never did because they worked with the government to ensure the warrant was right.

        So the judge is working in collusion with the government and that is how our rights are supposed to be protected. yeah, I feel so much better now.

  4. “The court’s role, it seems safe to say, is to listen to government officials’ assurances that everything they do is on the up and up, nod sagely, and then add a little judicial window dressing to whatever the surveillance state is up to.”

    Back in the days before the interwebs came preinstalled on the computers, we used to call that a “rubber stamp”.

    Judges can be impeached, right?

    1. Can secret judges of secret courts be impeached? I mean, it’s like secret and stuff. National security, you know.

      1. The judges aren’t secret!

        There’s a picture of one of them right up there with his name.

        1. WTF is up with the black and white photo.

          1. They pulled it off of his Instagram feed.

          2. It’s artistic and stuff.

      2. Can secret judges of secret courts be impeached?

        Only in secret.

    2. AFAIK, yes. But that’s up to congress, and congress is often just fine using the courts as a blame sink.

      1. There should at least be a sacrificial lamb.

        It wasn’t our fault! It was the rotten judge!

        He signed off on a warrant that cover 320 million Americans!

        Let him explain that himself before Congress. Here’s the Republicans’ chance to be the party of civil rights.

  5. You know who else had secret courts?

    1. Judge Alvin ‘J.P’ Valkenheiser?

    2. The honor system of every college?

    3. My ex-girlfriend?

      I swear, she forced me to testify against myself, and I was flat out denied the right to counsel. There were unreasonable searches and seizures and everything!

    4. Arthur Ashe?

  6. Mr. President, we have some problems here.

    Sorry, but the president is off on Chilmark shooting hoops and playing golf; he can’t hear you right now.

  7. [T]he FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.

    In the US courts take a passive role; they don’t launch investigations or follow-up on compliance, they wait for someone to file a motion. This is good because it firewalls prosecution from judgement; unlike (ie) Italy where judges actively investigate and bring the charges themselves. This is bad because it places the burden of forcing compliance with court orders on prisoners, wronged parties and others who may lack the resources to challenge a hostile executive. Also, do we really want government policing itself?

    1. That is okay because we give those people legal representation. The adversarial process is going to keep the government more honest than the Italian system. Under that system, there is no check on the government.

  8. The FISA court is apparently establishing a special advocate position to speak up for the rights of the people against whom warrants are being sought. This is kind of like a public defender, except the accused don’t even know that there’s anything going on.

    This is not ideal, but at least it’s something.

    1. Sure. What’s the timeframe? 2017?

    2. Ah the FISA Ombudsman. Also known as the Secret Fairness Czar. It’s totally constitutional now.

    3. That is not a bad idea. The problem is that we have a lot of such people all over government. I would bet money that the NSA has a civil rights and civil liberties section that has the mission of speaking up for privacy and civil rights. But that doesn’t mean anyone pays attention to them.

      Without someone there who is representing a real client and isn’t working for the government, it is real hard to ensure your advocate isn’t just ignored or gets co-opted by the government.

      Whatever you do, these decisions have to be made public after some short interval. If these judges had people reading their decisions and actually had to answer to their colleagues and the public for their decisions, they would be much more careful about what they did and would be much less of a rubber stanp.

    4. What??? A secret defender defending people without their assistance, and without their even knowing that their rights are at issue? And the secret defender is an employee of the very same government that is seeking to violate your rights? This is a “good” idea?

      Like my screen name, it sounds like something straight out of The Prisoner.

      1. A better idea than having no “defendant” representation whatsoever. Previously, it was just the DOJ (prosecutors) and the judges.

        The article didn’t go into specifics, but if this is like the normal Federal Public Defenders then those advocates will be employees of the court system, not the DOJ. Again, not ideal. Nowhere near ideal, but something.

        1. Window dressing for tyranny is all it is.

          1. As I said above, we have such people all over government. And they end up being ignored or co-opted. I think people who have never worked in government don’t understand how the culture of an organization can co-opt someone. The organization has a mission and the people there are nice to you and they make you feel a part of things. And before you know it, your watch dog is just there figuring out ways for the organization to circumvent the rules to get the job done.

    5. Isn’t that what the fucking JUDGE is supposed to be??

  9. It doesn’t quite fit, but: “He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.”

  10. OT, missed the links, don’t know if this was discussed.

    Chris Christie planted himself firmly in the Republican Party’s establishment wing Thursday with a pugnacious speech calling on his party to focus on pragmatism rather than ideology and crippling internal debates.

    “We are not a debating society,” Christie told a lunchtime audience at the Republican National Committees summer meeting in Boston. “We are a political operation that needs to win.”…

    …For our ideas to matter we have to win. Because if we don’t win, we don’t govern. And if we don’t govern all we do is shout to the wind. And so I am going to do anything I need to do to win.”…

    …”There’s nothing wrong with our principles. We need to focus on winning again.

    What an asshole! He’s a caricature of everything wrong with Team politics. I think it’s going to backfire.

    1. It is in the morning links. And Rand Paul destroyed him over that. The thing about that statement is that it shows what a bubble he lives in. Politicians may think that. But they are usually smart enough not to say it publicly. That Christie did shows that he is totally out of touch with reality. I bet he thinks that giving that big kiss to Obama last year is going to help him win the GOP nomination because it showed how bipartisan he is. He is really that big of a moron.

    2. Yeah Christie!! Who actually needs ideas to win? Just promise people more goodies and pass more bad laws! That’ll work!

      1. Well, when you put it that way, he might be on to something.

      2. If it’s free guns and free ammo I could be swayed.

        Oh wait, the US already does that. For all the countries in the Middle East.

  11. OT

    And yet more CNN retardedness. Disgusting POS race baiters.

    Share your story of everyday racism

    What are your everyday experiences with racism? Whether a woman clutched her purse as you neared (like iReporter Egberto Willies), or someone followed you in a department store (like President Obama’s Trayvon Martin story), we’d like to hear your personal experiences.

    Share your story about your experience with racism. If you prefer, you don’t have to use your name. Your perspective could be part of CNN’s coverage.

    1. Unless you can read someone’s mind, you have no idea why they are rude or do something. It may have nothing to do with you. Maybe they are having a bad day. Or maybe they are just an angry jerk and are like that to everyone. But the race baiters ensure that every black person thinks every slight, no matter how small, is the result of racism. That makes our society just so much better.

      1. Haven’t you talked to many politically correct people? They almost uniformly proceed from the assumption that they can read other people’s minds. They “know” other people’s inner lives better than those other people themselves do, and they really, really don’t appreciate being asked how they know.

        1. Yes they do. They just know why people do things. And the reasons always fit the PC person’s prejudices and political narrative. The facts must always be made to fit the narrative.

        2. Either that or they think that it doesn’t matter why people do things. The action is racist because it is perceived as racist. It doesn’t matter the intention because it makes someone feel bad.

    2. My experience with racism… Most recently it was when the management reminded us as to the policy to steer away from merit hiring to diversity hiring, under the assumtption that ‘diverse’ people can’t compete on merit.

      1. I have experienced racism a lot. It is has always involved black civil servants who had real attitudes about white people.

        1. Petty tyrants.

        2. +1 real life.

      2. +1 reverse body slam

        Please, UCS, go over to CNN and post that.

    3. Well there was this time when I was in cooking school (not the Culinary Institute of America, but some trade school in Denver) and we had just finished serving the students from other classes outside. As we were carrying stuff in, the black kid who was holding the door let it slam in my face. The security guard who was right there opened the door for me and asked the kid why he did it. The kid said “Cuz he’s white.”

      But there are no black racists. That’s just a myth.

      1. You know, that black kid could have been Barack Obama….

        1. Or his son.

      2. And the white kids who are stuck in mostly black schools never have a hard time. Like all white people they live a life of privilege.

      3. Don’t you know the talking points? Racism has been redefined so that, by definition, nothing that any black person can do or say is racist. People who use that argument have varying definitions of what racism really is, but the rest of us have to accept that those definitions are the One True Definition.

  12. “Not so long ago, President Obama defended the U.S. government’s surveillance procedures, saying:

    [I]f people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.”

    Uh huh

    And exactly what provision of his own Obamacare legislation was it that allowed him to unlaterally declare there would be an implementation delay of the employer insurance mandate?

    And what provision of same said law allows the IRS to declare that people signed up by federal run healthcare exchanges are eligible for federal subsidies the same as those signed up by state run exchanges?

  13. a pugnacious speech calling on his party to focus on pragmatism rather than ideology

    Did he then whine about the “do-nothing Congress”?

  14. “Mr. President, we have some problems here.”

    Shhh! You fool! Don’t you know that for every fucked up problem there’s an equally fucked up solution (or ten) waiting to be implemented? Stop encouraging the bastards!

  15. http://hosted.ap.org/dynamic/s…..5-10-08-36

    Juror in Bulger case gets education on the state of our government.

  16. why do people keep saying rarely not approve a warrant. EVERY WARRANT has been APPROVED! Only one was denied on a technicality and was fixed and approved so NONE were DENIED

    This really pises me off. It gives a false presence of them actually doing something.

  17. Absolutely right, we do have serious “problems” here. But Obama’s mistaken, it’s not a matter of “trust” – it’s the matter of abuse of power, abuse of the US Constitution, and government spin and mendacity at many if not most levels.

    If Obama wants the people to trust him as well as the government, then the government needs to stop telling deliberate lies to the people. And to prosecute and fire those who do.

    Firing the man [name?] who lied to Congress about the government collecting data on its citizens would be a small but great start.

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