A letter (pdf) released today by a special surveillance court clears up some misconceptions about legal oversight for government wiretap activities. Responding to a letter from Senate Judiciary Committee Chair Pat Leahy (D-VT) and ranking member Charles Grassley (R-IA), the Foreign Intelligence Surveillance Court says, yes, it’s true, we do approve 99% of all wiretap applications. But for the first time, the FISC also says that it demanded changes to 24.4 percent of those applications before granting final approval (that’s for a recent three-month period).
This is the court’s way of saying, we are not a potted plant — or a rubber stamp, as some have alleged. We are reading these applications closely, and pushing back where appropriate.
But the letter also shows that the court could also be accused of operating hand in glove with government lawyers making these requests. Judge Reggie Walton says court legal staff “may meet with the government as often as 2-3 times a week…” to discuss whether privacy protections are adequate. That raises this question: Is this rigorous oversight, or does this close contact make the court more likely to grant final approval, albeit with emendations? Right now, the court only hears from the government, although as Walton notes, on a handful of occasions civil liberties groups have also filed motions with the court.
These details could be important as Congress decides whether to change surveillance laws so that a civil liberties advocate could appear before the FISC. Would such an advocate change the thinking of the FISC? Could an advocate possibly compete with the resources of the Justice Department? As we learn more about the workings of the once-secret surveillance court, Congress will have to decide whether an outside advocate is adequate to provide the oversight that lawmakers themselves have been slow to exercise.