Secret government: America against democracy
A court that is supreme, in the sense of having the final say, but where arguments are only ever submitted on behalf of the government, and whose judges are not subject to the approval of a democratic body, sounds a lot like the sort of thing authoritarian governments set up when they make a half-hearted attempt to create the appearance of the rule of law.It does sound like that. I agree. But so far as I can tell, even the the most strenuous credible arguments against the FISC don't argue that its judges have the "final say" over surveillance issues; FISC judges issue warrants which can be overturned by federal courts. The FISC isn't "supreme" and is in fact subject to the judgements of SCOTUS.As I understand it, the warrant process used in domestic criminal law is also not adversarial, implying somewhat that the second part of the topic sentence of this graf might mislead.Another error, this one more egregious:None of the judges of the FISA court were vetted by Congress. They were appointed by a single unelected official: John Roberts, the chief justice of the Supreme Court.Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.The article also cites sources selectively, which is unsurprising because it doesn't do any actual reporting but is instead an editorial analysis; so for instance it captures what the law professor who spoke to the New York Times believes, but misses what Orin Kerr, a GWU law professor and widely known expert on computer crime law (and, as I understood it, one of Weev's advocates at appeal), has said about the same process. Kerr has the (mis)fortune of not speaking through the prism of the mainstream media, but directly from his blog.By way of bona fides, before I'm again asked how long I've worked for NSA: I think the FISC process is extremely bad and poses a long-term threat to civil liberties. But to read this article, you might come away with the idea that the solution would be to fix the FISC, when in reality what needs to happen is for Congress (which retains the authority to abolish FISC entirely) to establish some kind of bright-line rule about the limits of "foreign" surveillance (now that so much foreign traffic routes through the US) and to ensure that foreign surveillance is firewalled off from the rest of the government.