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December 28, 2005
FISA Court Obstructionism Since 9/11

One of the arguments that critics of the Bush administration give for their outrage at the warrantless surveillance of international communications between targeted, non-US persons inside the US and suspected al-Qaeda contacts abroad is the supposed ease of gaining FISA warrants. Bear in mind that the text of FISA does not require warrants for that kind of communication, and the NY Times did not allege that the NSA tried to use warrantless surveillance for any other communications. Even if warrants were as easily gained as Bush's critics claim, the law allows them to do that kind of surveillance without it.

However, the track record of the FISA court shows that the judges have engaged in their own form of obstructionism after 9/11. The blog Bayosphere has put together a track record of FISA court actions on warrant applications, and it shows some surprising trends. Starting in 1979, the first twenty-one years of the court saw no rejections or forced changes in warrant applications -- not one single time. In 2000, the court forced a change in one single warrant. Since then, they've rejected four warrants and forced revisions in 176 warrants.

One might ask whether the Bush administration has flooded the FISA court with requests and has gotten sloppy about their work. Indeed, since 2001 the Bush administration has sought 5,645 warrants -- which hardly sounds like an administration that has worked with the impulse to run roughshod over the idea of getting search warrants for their work. That number reflects an increase of only 64% over the final term of the Clinton administration, which requested 3,436 FISA warrants during that period. Considering the increased activity by the Bush administration post-9/11 to tighten security and track terrorists, a 64% increase does not sound like the current administration has exactly tried to overwhelm the FISA court, but instead work within its legal parameters to balance national security and civil liberties -- and it seems as though the FISA court has chosen to get cranky about it at a very foolish point in time.

Even more curiously, 173 out of 177 of the forced changes and all four of the rejections came after the fall of 2002, after the appointment of Judge George Robertson, the FISA court member who made a public splash with his resignation earlier this month. Rodney at the Bayosphere deduces that Robertson probably knew more than he let on about the issues surrounding the NSA program and used his position to obstruct it, a deduction that appears sensible, looking at the data and Robertson's actions.

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Posted by Ed Morrissey at December 28, 2005 5:15 AM

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» Uncle Colin Comes Home? from Hard Starboard
Just to close this loop, the FISA court's obstructionism neatly coincides with Clintonoid Judge George Robertson's appointment to it in the fall of 2002, which makes his melodramatic, high dudgeon exit (though not from the federal bench altogether, w... [Read More]

Tracked on December 28, 2005 9:53 PM


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