Department of Rubber Stamps: The Foreign Intelligence Surveillance Court

The real stamp would look a lot more worn tha this one

The real stamp would look a lot more worn than this one

In 2015, the the National Security Agency and the Federal Bureau of Investigation went to the U.S. Foreign Intelligence Surveillance Court for authority to intercept communications, including email and phone calls 1,457 times. About four times a day, each and every day of the year.

Want to guess how many times the FISC granted the government’s requests?

All 1,457 times.

In 2014, there were 1,379 requests to the FISC, and the court granted . . . all 1,379 requests.

Isn’t this the very definition of a rubber stamp?

A U.S. Department of Justice memo leaked to Reuters revealed the facts. Wow, those FISC judges must have their arms get really sore what with all that rubber stamping.

The Foreign Intelligence Surveillance Court is understandably defensive about these numbers. They have told the Senate Judiciary Committee that “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.” No one who is neutral is there to watch, of course. It’s all closed, secret proceedings. It’s not an adversarial system, where both sides present arguments to a neutral decision maker. Instead, it is a frightening collaboration between the government and this phony court.

And any court, anywhere, that approves three-quarters of orders submitted to it without any substantive changes is a rubber stamp affair. Since we don’t get to see any of the orders, we don’t know what “substantial changes” are in the quarter of cases where the FISC has stirred itself to NOT simply rubber stamp the orders. Without knowing, WC has little no confidence is how “substantial” any claimed changes were.

Seriously, the FISC is a horrible excuse for a court of law, it represented a unknowably large hole in the Fourth and Fifth Amendments.1

And it isn’t going to get corrected any time soon, because the rubber stamp-wielding members of the FISC are appointed by the Chief Justice of the U.S. Supreme Court, which compromises any correction by the Judicial Branch. And the idea of our gridlocked, paralyzed Congress doing anything useful is laughable.

An unknown number – secret, remember? – portion of the FISC orders involve U.S. Citizens and domestic surveillance. That’s you and me, folks, not some terrorist overseas. If that doesn’t worry you, you are either naive or not paying attention.

  1. WC doesn’t want to get too lawyerly here, but technically the FISC has expanded the SCOTUS-created “special needs” exception to the Fourth Amendment’s requirement of a warrant to the point that it largely has swallowed the warrant requirement.