Former judge calls for FISA court improvements

“I submit that this process needs an adversary,” said Robertson.

“If it’s not the [American Civil Liberties Union] or Amnesty International, perhaps the PCLOB itself could have some role as a kind of a institutional adversary to challenge and take the other side of anything that is presented” to the court, he added.

Yet Robertson, who said he asked to be appointed to the court because he wanted “to see what it was up to,” also defended the work of the court and said it was “not a rubber stamp” for approving surveillance requests.

“In fact, the numbers that are quoted about how many warrants get approved do not tell you how many were sent back for more work before they were approved,” he said.

The workshop was the first the oversight board has held and is its first test on whether it can have a hand in policy-making. The PCLOB recently formed after its members faced a set of delays with Senate confirmations.

Two former administration officials under President George W. Bush defended the two controversial surveillance programs, which have sparked international outcry.

In particular, Kenneth Wainstein, who served as the national security adviser to President Bush, said the law used to operate the NSA program that monitors electronic communications of foreign targets  “was a carefully calibrated piece of legislation.” The program is authorized under section 702 of the Foreign Intelligence Surveillance Act, which was updated in 2008 under the FISA Amendments Act (FAA).

“Not surprisingly, we’re seeing exactly what was contemplated when Congress carefully considered passing the FAA, which is a program that focuses on the surveillance of foreign national security  targets … It is conducted well within the bounds of the 4th Amendment. It is carried out with the knowledge and engagement of all three branches of government, and it is monitored with multiple levels of oversight and is exactly what the Congress and American people asked for in the legislative process that resulted in the passage of the FAA,” Wainstein said.

Jameel Jaffer, director of the American Civil Liberties Union, argued that the surveillance programs Snowden recently brought to light “shouldn’t have been secret in the first place.”

Jaffer argued that public should have known about the NSA’s collection of their telephony metadata, which is carried out under section 215 of the Patriot Act. He called the program “a massive dragnet” and warned against the NSA storing the public’s phone records in a database.

The laws governing the NSA’s access to the database could change in the future in the event of a terrorist attack, Jaffer said, which may leave behind the privacy safeguards used today.

Intelligence and national security officials have said the phone records collected under the surveillance program do not include the content of people’s phone conversations. The records show what numbers people have dialed and the duration of their calls.

Kate Martin, the director of the Center for National Security Studies, echoed a similar warning as Jaffer.

“I think it’s pretty clear that until this past month, the American people had no idea that section 215 … was being used to collect all of telephony metadata on Americans’ phone calls,” Martin said. 

At the conclusion of the panel, PCLOB member James Dempsey called on the civil liberties groups to develop “more granular and specific” recommendations on how the FISA court and surveillance programs should operate—even if the groups want to do away with the programs completely.

Dempsey argued that former government officials also have a role to play in suggesting improvements to the programs after the leaks about the surveillance programs surfaced.

“It can’t be that everything is perfect,” Dempsey said.


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