Former FISA Judge Criticizes the Court

Well, now we have a retired FISA Court Judge saying this court has been reduced to a joke and a fraud:

A retired judge who once served on a secretive U.S. intelligence court said on Tuesday it should not be able to approve broad government data-gathering requests without hearing from outside parties who could warn of potential civil liberties concerns.

Currently, the Foreign Intelligence Surveillance Court makes its decisions on government surveillance requests without hearing from anyone but U.S. Justice Department lawyers in its behind-closed-doors proceedings.

James Robertson, a retired federal judge in Washington who served on the court for three years ending in 2005, said that if the court is required to approve broad data-collection programs, the judges should be able to hear from other parties.

Speaking at a public meeting in Washington on privacy and civil liberties, he said the process would work better if some approximation of an adversarial system existed.

"I submit this process needs an adversary," he said.

Robertson suggested the possible reforms during the public meeting held by the Privacy and Civil Liberties Oversight Board, a bipartisan government entity set up in 2004 to advise the White House on civil liberties concerns raised by intelligence gathering. He said the privacy board itself could possibly be a party in the intelligence court's proceedings.

The actions of the court have come under new scrutiny following the disclosure of previously secret telephone and internet surveillance programs conducted by the U.S. government.

The British Guardian and the Washington Post newspapers disclosed the details of the data collection in June based on documents provided by Edward Snowden, the fugitive U.S. National Security Agency contractor believed to be holed up in Russia.

Since the U.S. Congress amended the 1978 Foreign Intelligence Surveillance Act (FISA) in 2008, the court "now approves programmatic surveillance," Robertson said, meaning it was acting more like a government agency than a court.

"That's not the bailiwick of judges," he said. "Judges don't make policy."

Robertson said that when he served on the court, the judges' role was to decide whether to grant government requests for individual warrants, he said. Granting approval to entire programs is not a "judicial function," he said.

(emphasis mine)

While he does say that he is not suggesting the law is being broken, this sort of talk from a judge about his court (with the possible exception of Antonin "Fat Tony" Scalia) is very rare.

Note also that he is not criticizing the judges, he is criticizing the role of the court under new laws.

Understanding just how vehement this seemingly mild speech is a bit like reading Nathanial Hawthorne,^* he cannot express his outrage explicitly.  It is a circuitously oblique way to to express his views, but this is as befits a judge.

^*The phrase, "Then, all was spoken!" refers to physical passion (probably sex) in The Scarlet Letter.