Former FISC Judge Quit Over Warrantless Wiretapping, Now Argues FISC Is Out Of Control

Judge James Robertson

Last year, we noted that after five years of nothingness, despite what the law required, the federal government finally had a Privacy and Civil Liberties Oversight Board (PCLOB), after years of nominations that went nowhere. The PCLOB does now exist and has been charged with looking into the government’s surveillance efforts. While the PCLOB does have some really good members who are strong privacy/civil liberties advocates, there are significant questions about how much authority it actually has. Still, on Tuesday, the PCLOB held hearings on the ongoing surveillance programs, and perhaps the most interesting thing to come out of them were the comments from James Robertson, a former FISC judge, who had quit the court, but had not spoken publicly about why until now…

Specifically, he claims that he quit because of revelations about the Bush administration using warrantless wiretapping and going around the court’s approval process.

Robertson said he asked to join the FISA court “to see what it was up to,” had previously played a central role in national security law. He was the judge who ruled against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld by the Supreme Court in 2006.

Robertson quit the FISA court in 2005, days after the New York Times revealed widespread NSA warrantless wiretapping under President George W. Bush’s administration. Robertson had previously refused to explain his decision. But during a break in the hearing Tuesday he confirmed for the first time to the AP that he had “resigned in protest because the Bush administration was bypassing the court on warrantless wiretaps.”

Robertson argued that the “rubber stamp” claims about the FISA Court were inaccurate, saying that they left out the fact that FISC frequently pushed back on requests, requiring changes from the government, which were not seen in the overall stats on requests “approved” by the court. That said, he notes that the approval/disapproval of warrants was supposed to be all that FISC was about — but since the FISA Amendments Act of 2008, the role of FISC has changed entirely, from a narrowly focused court approving specific warrants to what is effectively a judicially runadministrative agency designed to approve entire surveillance programs:

But he warned that Congress’ 2008 reform of the FISA system expanded the government’s authority by forcing the court to approve entire surveillance systems, not just surveillance warrants, as it previously handled. Under the FISA changes, “the court is now approving programmatic surveillance. I don’t think that is a judicial function,” he said.

Robertson said he was “frankly stunned” by a recent Times report that FISA court rulings had created a new body of law broadening the ability of the NSA to use its surveillance programs to target not only terrorists but suspects in cases involving espionage, cyberattacks and weapons of mass destruction.

This is a really key point that has not received nearly enough attention. Under the old rules, the FISC would look at specific warrants and approve or (rarely) refuse to approve those warrants. But now it basically is issuing a blanket “approval” of methods and techniques, such as the infamous dragnet of all information on all phone calls from various telcos. That’s a really different function.

Furthermore, Robertson highlighted what many of us have been saying all along: when you have a secret court that only hears one side of a case, it should be no surprise that the court keeps pushing further and further in the direction of the single party (the government) that presents information before it. Robertson’s suggestion to try to fix this is to somehow come up with an adversarial process — whether it’s (for example) someone from a public interest group, such as the ACLU, or someone appointed by the PCLOB itself, to act as an advocate for those on the other side of the government’s surveillance desires.

Former FISC Judge Quit Over Warrantless Wiretapping, Now Argues FISC Is Out Of Control

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