How the separation of powers between the executive branch and the judiciary has been broken by the FISA court

The Associated Press reports: A former federal judge who served on a secret court overseeing the National Security Agency’s secret surveillance programs denied Tuesday that the judges act as “rubber stamps.” But James Robertson said the system is flawed because of its failure to allow legal adversaries to question the government’s actions.

“Anyone who has been a judge will tell you a judge needs to hear both sides of a case,” Robertson, a former federal district judge based in Washington who served on the secret Foreign Intelligence Surveillance Court, said during a hearing of the federal oversight board directed by President Barack Obama to scrutinize government spying.

Robertson questioned whether the secret FISA court should play the role of providing legal approval for the surveillance programs, saying the court “has turned into something like an administrative agency.”

Much of the NSA’s surveillance is overseen by the FISA court, which meets in secret and renders rulings that are classified. Some of these rulings also likely been disclosed by Edward Snowden, the NSA systems analyst who leaked significant information about the spying program. After Snowden began exposing the NSA’s operations in June, Obama instructed the board to lead a “national conversation” about the secret programs. The board has been given several secret briefings by national security officials and it plans a comprehensive inquiry and a public report on the matter.

The board’s chairman, David Medine, had told The Associated Press in advance of Tuesday’s hearing that “our primary focus will be on the programs themselves. Based on what we’ve learned so far, further questions are warranted.”

Robertson, who said he asked to join the FISA court “to see what it was up to,” had previously played a central role in national security law. Robertson was the judge who ruled against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld by the Supreme Court in 2006. [Continue reading…]

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1 thought on “How the separation of powers between the executive branch and the judiciary has been broken by the FISA court

  1. hquain

    This seems to me a tepidly ‘rational’ reaction, disconnected from the structural reality of what’s happening (has happened) to the governing apparatus of the country. It’s like worrying about what can be done to prevent drivers from entering the intersection after the light has turned yellow — instead of grasping that the road should not be there.

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