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View Diary: Dick Durbin: Secret FISA court 'fixed,' 'loaded' (206 comments)

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  •  A better analogy is the typical application (4+ / 0-)
    Recommended by:
    CroneWit, alba, Tony Situ, Reggid

    for a wiretap or other intercept in federal and state courts in non-FISA contexts. These proceedings are non-adversarial (i.e., ex parte), the targets do not necessarily ever learn of their issuance or execution, the approval rate is about the same as with FISC (in some years, not a single one is denied), they generally are not made public unless they lead to prosecution, and they are issued by a single judge.

    Some crucial differences are (a) the much looser legal standard (in breadth and length) to be applied under FISA -- a function primarily of Congressional cowardice; (b) the undisclosed nature of any glosses on that legal standard developed by the FISC; (c) the lack of meaningful appellate review, which can occur in the non-FISA context at least if prosecution results from the intercept; (d) the insufficient, bare bones public reporting on the number and scope of the orders issued; and (e) the restricted pool of judges involved in the process.

    •  Thanks -- I think that gets to heart of it (1+ / 0-)
      Recommended by:
      Villanova Rhodes

      Thanks for the information.  The differences in FISA versus non-FISA courts seems to go to heart of FISA itself:  the need for covert (secret) surveillance.  

      There are those who seem to suggest that we never need secret warrant proceedings.  Personally, I think reality dictates that such secret proceedings are needed -- that was the whole point of FISA in the first place.  The question, then, becomes how do we ensure maximum Constitutional safeguards while recognizing the legitimate need for secrecy in these cases?  I've suggested a more robust role for an IG/Auditor's office, one which is dedicated solely to monitoring the granting of FISA warrants and the NSA programs at issue.  But I kind of like Durbin's suggestion, too -- although not, perhaps, using an "advocate," strictly speaking, in the sense of having a mini-trial, but maybe more as the role of a guardian/monitor, perhaps something akin to the role of public advocate in the French legal system.

      •  While I don't adopt every word, I think (1+ / 0-)
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        Reggid

        this comment did a nice job of advancing the discussion along the lines you suggest: It's the Supreme Court Stupid's comment

        I also found Judge Carr's NYT column about using appointed attorneys, as well as Judge Robertson's comments, useful starting points. Focusing on the judges and their selection -- though I too would change the selection process -- lets Congress off the hook for the substance of the law.

        •  That approach makes a lot of sense (1+ / 0-)
          Recommended by:
          Villanova Rhodes

          I like the notion of a party serving in a quasi-public-guardian role.  I even like the notion of allowing redacted opinions to be released publicly.

          •  Eventual (i.e., as soon as reasonably possible) (1+ / 0-)
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            Reggid

            accessibility of the opinions is critical, in my view. It's essential to the definition of a court in our system. And I wouldn't leave the power in the hands of the AG to decide whether to release them or not, as I think one of the new proposals does. The AG should be heard, offered the opportunity to prepare a suggested redacted version, and even able to appeal the release, but not be the last word. That too is an essential judicial function.

            Meaningful appellate review on both the substance of the decisions and access to them is where I'd be spending my efforts. And with that, I'd be paying a lot more attention to the designations for FISCoR than to the FISC itself.

            I'm accepting for purposes of the discussion that some court of this type is necessary. I'm not entirely convinced, and I see pros and cons that aren't likely to be productively hashed out here.

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