James Robertson, a former federal district judge who served on the secret Foreign Intelligence Surveillance Court, addressing the new Privacy and Civil Liberties Oversight Board, on July 9, explained why FISA cannot perform the function which is assigned to judges: that they choose between adversaries. Dan Froomkin quotes Robertson from the transcript:
I read the other day that one of my former FISA Court colleagues resisted the suggestion that the FISA approval process accommodated the executive, or maybe the word was cooperated. Not so, the judge replied. The judge said the process was adjudicating.
I very respectfully take issue with that use of the word adjudicating. The ex parte FISA process hears only one side and what the FISA process does is not adjudication, it is approval.
Which brings me to my second and I think closely related point. The FISA approval process works just fine when it deals with individual applications for surveillance warrants because approving search warrants and wiretap orders and trap and trace orders and foreign intelligence surveillance warrants one at a time is familiar ground for judges.
And not only that, but at some point a search warrant or wiretap order, if it leads on to a prosecution or some other consequence is usually reviewable by another court.
But what happened about the revelations in late 2005 about NSA circumventing the FISA process was that Congress passed the FISA Amendments Act of 2008 and introduced a new role for the FISC, which was to approve surveillance programs.
That change, in my view, turned the FISA Court into something like an administrative agency which makes and approves rules for others to follow.
Again, that’s not the bailiwick of judges. Judges don’t make policy. They review policy determinations for compliance with statutory law but they do so in the context once again of adversary process.