But these legal arguments are pedantries to many Arabs and Irish residing in the United States who fear they will be unjustly targeted under the new statute. And they don't calm civil libertarians, who fear the FISA Court is a mere rubber stamp for executive power.
"Government lawyers might not lie about the facts," says Kate Martin of the Center for National Security Studies. "But they draft the applications in a way to say that these facts meet the requirements, and by the time the application reaches the court, it is unlikely that the court really gets to notice deficiencies."
Officials at the Justice Department and FISA Court deny that the latter is a rubber stamp, attributing Justice's winning percentage to rigorous internal review that weeds out bad applications before they're filed. That's how presiding FISA Judge Royce Lamberth feels. "There might be a concern that the Justice Department has been too conservative in what they are presenting to the court if we're approving every one," he says.
But the public doesn't have many independent guarantees that the courts are applying tough scrutiny to the government's applications. Secrecy prevents open investigation of the courts' methods and standards; there is a paucity of serious journalistic coverage of the courts; and congressional oversight of the courts is limited to the review (in closed session) of classified reports. The only public indication that FISA plays fair comes from federal courts. In their review of several FISA applications in the context of criminal cases, they have yet to indicate that a FISA warrant was improperly granted.
"I understand that it's hard for people who don't see the process," Deputy Attorney General Jamie Gorelick said of FISA in 1994. "We're not at liberty to make the kind of disclosures that I agree would make the public more comfortable."
Secret courts require great faith that the Justice Department--and future Justice Departments--will act with integrity. In the absence of more openness, nobody outside the national-security establishment will know how much freedom the secret court structures really cost.