Secret Surveillance Court Insists It's Not a Rubber Stamp

The Citizen's Guide to the Future
Oct. 16 2013 2:56 PM

Secret Surveillance Court Insists It's Not a Rubber Stamp

Since it was founded in 1979, the secret court that signs off on NSA spying has rejected just 11 of the 34,000 surveillance requests it has received. But now the Foreign Intelligence Surveillance Court is attempting to shoot down the suggestion that it is merely a rubber stamp.

In a letter sent to senators and published online Tuesday, FISC Judge Reggie Walton attempts to quash the idea that the court is a pushover. Walton says that before signing off on government spying requests, the court sometimes orders changes to be made to the proposed surveillance. The FISC has begun monitoring these changes  and says that from July-September, “24.4% of matters submitted ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action."

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What qualified as a “substantive change” isn’t explained, but Walton says “typographical corrections” did not count. The judge adds that the 24.4 percent figure is likely “typical in terms of the historic rate of modifications.” In other words, this means that about three-quarters of the government’s surveillance requests to the FISC are signed off with minor changes, if any at all.

The FISC was formed under the Foreign Intelligence Surveillance Act following a series of domestic spying scandals in the 1970s. It is often referred to as the “FISA court” and is believed to be located in a secretive high-security room at the Prettyman Courthouse in Washington, D.C. The court plays an important role in overseeing NSA spy initiatives but did not receive national scrutiny until recent leaks of secret surveillance documents by former NSA contractor Edward Snowden. In June, the FISC was thrust into the spotlight when the first of a series of scoops published by the Guardian revealed that it had signed off on an order compelling a business subsidiary of Verizon to turn over millions of Americans’ phone records on a daily basis.

In the fallout from the Snowden leaks, the FISC has been repeatedly slammed for its apparent deference to sweeping and controversial government demands. But documents declassified following Snowden’s disclosures have shown that the secret court’s judges have sometimes called out unlawful NSA surveillance and in at least one case threatened senior officials with contempt charges for repeatedly providing false information to the court. The declassified documents have shown that the judges sometimes appear highly frustrated at the government’s conduct and their lack of power to fully rein in abuses. Indeed, as the Washington Post reported in August, Judge Walton has acknowledged that the court’s power to carry out critical oversight “is limited and that it must trust the government to report when it improperly spies on Americans.”

Several lawmakers are currently pushing for reforms to the FISC, with proposed bills in the House and Senate aiming to address concerns about how it functions. The court hears only the government’s side of the argument, but there is bipartisan support behind the idea of bringing in a constitutional or civil liberties advocate to the court in a bid to ensure that the balance between security and privacy is more evenly weighed.

Future Tense is a partnership of SlateNew America, and Arizona State University.

Ryan Gallagher is a journalist who reports on surveillance, security, and civil liberties.

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