US must fix secret Fisa courts, says top judge who granted surveillance orders
A former federal judge who granted government surveillance requests has broken ranks to criticise the system of secret courts as unfit for purpose in the wake of recent revelations by NSA whistleblower Edward Snowden.
James Robertson, who retired from the District of Columbia circuit in 2010, was one of a select group of judges who presided over the so-called Fisa courts, set up under the Foreign Intelligence Surveillance Act, which are intended to provide legal oversight and protect against unnecessary privacy intrusions.
But he says he was shocked to hear of recent changes to allow more sweeping authorisations of programmes such as the gathering of US phone records, and called for a reform of the system to allow counter-arguments to be heard.
The changes to the system which he is criticizing have occurred since the Obama administration came into office. His main criticism seems to be of the ex parte arrangement where the court only listens to the DOJ and makes authorization based solely on their claims. He is recommending some arrangement for a devil's advocate.
It is his view that prior to 2008 only applications for individual warrants were being submitted to the court.
"What Fisa does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but the 2008 amendment has turned the Fisa court into administrative agency making rules for others to follow."
"It is not the bailiwick of judges to make policy," he added.
It is pretty much a first that a judge with experience in how the system works has come out publicly with serious criticisms of it.