Gavel Grab

Scrutiny, Debate Over Foreign Intelligence Surveillance Court

The role of a secretive federal court in Washington is getting increased scrutiny as debate rages over disclosures of programs for U.S. government surveillance and collection of telephone call and Internet data for national security purposes (see Gavel Grab).

On Friday, President Obama said in defense of the programs, according to the Washington Post, “What you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress, bipartisan majorities have approved them, Congress is continually briefed on how these are conducted . . . and federal judges are overseeing the entire program throughout.”

But whether the oversight provided by the branches, including the Federal Intelligence Surveillance Court, is meaningful was questioned by civil libertarians, some academics and members of Congress.

“I find it difficult to believe that Congress or the FISA court provide the robust oversight to which President Obama alluded,” Stephen I. Vladeck, who teaches law at American University, told the Washington Post for a separate article.

When the court entrusted with ensuring Americans’ rights in this realm “meets in secret, allows only the government to appear before it and rarely publishes its decisions,” there is undermining of judicial oversight, contended Jameel Jaffer of the American Civil Liberties Union.

While some critics say the court’s judges act as little more than rubber stamps under applicable federal law, the Post reported that judges who have sat on the court “bristle” at that notion.

And U.S. District Judge Reggie Walton, who currently is chief judge of the court, rejected in an interview with The Guardian newspaper a critic’s “kangaroo court” claim.

“The perception that the court is a rubber stamp is absolutely false,” Judge Walton said.

He went on, “There is a rigorous review process of applications submitted by the executive branch, spearheaded initially by five judicial branch lawyers who are national security experts and then by the judges, to ensure that the court’s authorizations comport with what the applicable statutes authorize.”

Sen. Dianne Feinstein, who chairs the Senate Intelligence Committee, defended these programs as valuable in U.S. counterterrorism efforts. Sen. Rand Paul contended they are unconstitutional, according to a New York Times blog post.

Justice at Stake published in 2006 a report, Courting Danger, that warned, “[I]n the name of protecting us from terror, our courts are being deprived of the authority and independence they need to protect our Constitutional liberties and hold the government accountable. The PATRIOT Act and other post-September 11 policies dramatically weakened the historic power of the courts to protect our rights and check possible government abuses. These laws have expnded the ability of the federal government to investigate and incarcerate without meaningful review from a judge. In some cases, our judges’ gavels have been replaced with virtual rubber stamps. In others, the government can now skip the courthouse altogether.”

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