After last week’s revelations extensive National Security Agency surveillance of phone and internet communications, President Barack Obama made it a point to assure Americans that, not to worry, there is plenty of oversight of his administration’s snooping programs. “We’ve got congressional oversight and judicial oversight,” he said Friday, referring in part to the Foreign Intelligence Surveillance Court (FISC), which was created in 1979 to oversee Department of Justice requests for surveillance warrants against foreign agents suspected of espionage or terrorism in the United States. But the FISC has declined just 11 of the more than 33,900 surveillance requests made by the government in 33 years, the Wall Street Journal reported Sunday. That’s a rate of .03 percent, which raises questions about just how much judicial oversight is actually being provided.
“The FISA system is broken,” Marc Rotenberg, executive director of the Electronic Privacy Information Center, told the Journal. “At the point that a FISA judge can compel the disclosure of millions of phone records of US citizens engaged in only domestic communications, unrelated to the collection of foreign intelligence…there is no longer meaningful judicial review.”
But according to Timothy Edgar, a top privacy lawyer at the Office of the Director of National Intelligence and the National Security Council under Bush and Obama, it’s not quite as simple as the FISC rubber stamping nearly every application the government puts in front of it.
The reason so many orders are approved, he said, is that the Justice Department office that manages the process vets the applications rigorously… [S]o getting the order approved by the Justice Department lawyers is perhaps the biggest hurdle to approval. “The culture of that office is very reluctant to get a denial,” he [told the Journal].
Still, the entire process is closed. The FISC court hears evidence for surveillance applications presented solely by the Department of Justice. The court does not have to release its opinions or any information regarding such hearings.
In February, Sens. Dianne Feinstein (D-Calif.), Jeff Merkley (D-Ore.), Ron Wyden (D-Ore.), and Mark Udall (D-Colo.), wrote a letter to the FISC asking the court to consider releasing portions of its opinions to the public by “writing summaries of its significant interpretations of the law in a manner that separates the classified facts of the application under review from the legal analysis, so as to enable declassification.” After the revelations on the spying programs last week, Sen. Al Franken called the same thing.
In response to the senators’ letter, the FISA court’s presiding judge, Reggie B. Walton, said in March that it would be very difficult to release summaries of the court’s opinions to the public, because the legal analysis in most opinions is “inextricably intertwined” with classified information.
This post has been corrected. A commenter pointed out that a previous version stated that the FISA court has rejected .0003 percent of all government surveillance requests. The correct percentage is .03. Apologies for the bad math.