On the FISA Court and "Rubber Stamping"

In preparing for a lecture that I need to give that includes a discussion of the Foreign Intelligence Surveillance Act, I once again came across the (true) claim that the FISA court (FISC) denies only a miniscule fraction of the requests made of it by the Justice Department. For example, in 2013 the US government made 1,588 requests to the FISC for authority to conduct electronic surveillance, of which none were denied and 34 were modified by the court. (See here.) Similar patterns hold for earlier years as well. Many critics of government surveillance point to the miniscule fraction of requests denied by the FISC as proof that the court is a rubber stamp to government requests for surveillance. Those with significant first-hand experience with the process assert that on the contrary, the fact that so few requests are denied is a demonstration of how seriously the application process is taken—that government authorities take special care in ascertaining the relevant facts and meticulously following all of the necessary procedures. After thinking about all of this, I conclude that probably neither story is entirely true. Without having been on the inside (and if I had been, I probably could not talk about it because of security clearance issues), I suspect that the FISC is probably not exempt from the practices and procedures that characterize most organizations. Specifically, if I were a Department of Justice official trying to prepare an application, I would certainly try to get feedback from the court (more specifically, from court staff) on my initial drafts before submission. I would modify my application in accordance with such feedback, and assuming that the court staff understood the thinking of the sitting judges on the court, I would thus increase the likelihood that my application would be accepted. (Indeed, it is likely that part of my own performance review would include commentary on how my applications were adjudicated, and it would not be in my interest to show too many declinations.) If this perspective has any validity, it suggests that there might be value in knowing how many applications were modified as the result of interactions between court *staff* and DOJ personnel and subsequently sent to the court itself. Such information could help to dispel the view of the court process as a rubber stamp and provide a more realistic view of how the court process actually operated. [In a note sent to me after this posting was published, it was pointed out that there is some information on the point discussed above in a letter from the FISA Court to Senator Leahy in October 2013. (See here.) According to this letter, 24 percent of the initial applications to the court resulted in substantive changes either to the information provided or in the authorities requested from the court. Of course, critics can still point out that 76 percent of the applications were approved without change and that 76 percent still indicates a rubber-stamping court. But 76 percent is a far cry from 99+ percent.]