Ex-judge says intelligence court should hear from outside parties

Reuters News
Posted: Jul 09, 2013 6:27 PM

By Lawrence Hurley

WASHINGTON (Reuters) - A retired judge who once served on a secretive U.S. intelligence court said on Tuesday it should not be able to approve broad government data-gathering requests without hearing from outside parties who could warn of potential civil liberties concerns.

Currently, the Foreign Intelligence Surveillance Court makes its decisions on government surveillance requests without hearing from anyone but U.S. Justice Department lawyers in its behind-closed-doors proceedings.

James Robertson, a retired federal judge in Washington who served on the court for three years ending in 2005, said that if the court is required to approve broad data-collection programs, the judges should be able to hear from other parties.

Speaking at a public meeting in Washington on privacy and civil liberties, he said the process would work better if some approximation of an adversarial system existed.

"I submit this process needs an adversary," he said.

Robertson suggested the possible reforms during the public meeting held by the Privacy and Civil Liberties Oversight Board, a bipartisan government entity set up in 2004 to advise the White House on civil liberties concerns raised by intelligence gathering. He said the privacy board itself could possibly be a party in the intelligence court's proceedings.

The actions of the court have come under new scrutiny following the disclosure of previously secret telephone and internet surveillance programs conducted by the U.S. government.

The British Guardian and the Washington Post newspapers disclosed the details of the data collection in June based on documents provided by Edward Snowden, the fugitive U.S. National Security Agency contractor believed to be holed up in Russia.

Since the U.S. Congress amended the 1978 Foreign Intelligence Surveillance Act (FISA) in 2008, the court "now approves programmatic surveillance," Robertson said, meaning it was acting more like a government agency than a court.

"That's not the bailiwick of judges," he said. "Judges don't make policy."

Robertson said that when he served on the court, the judges' role was to decide whether to grant government requests for individual warrants, he said. Granting approval to entire programs is not a "judicial function," he said.

Robertson said in an email that his comments on the expanded role of the court did not indicate that he thought the internet surveillance program was unlawful.

"My point is simply that judges make better decisions when they can hear from both sides," he wrote. "Routine warrant approval is traditionally a one-sided process, but when it comes to approval of complex programs, there ought to be some way for the FISA court to get input from sources other than the executive."

Despite his concerns, Robertson defended some of the court's activities, saying in his public remarks that it had a role to play in reviewing the government's actions.

"The FISA court is not a rubber stamp," he said.


Appointed to the district court by Democratic President Bill Clinton in 1994, Robertson resigned from the intelligence court when the New York Times reported that Republican President George W. Bush's administration had circumvented the court by setting up a warrantless surveillance program. The Washington Post reported at the time that his decision was in protest over the administration's actions.

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The court, set up by the 1978 law to help try to curb abuses by U.S. intelligence agencies, operates in secret. Its 11 judges, appointed by U.S. Chief Justice John Roberts, are full-time federal district court judges who take on the task as an additional responsibility.

In June, the Guardian published a FISA court order that showed it had given permission for the U.S. government to access data of telecommunications giant Verizon Communications Inc.

The court also has approved government requests for data from internet service providers under a section of the 2008 law that focuses on non-U.S. targets that are seen as a threat to national security.

Tuesday's meeting, which featured three panels of experts, was part of a fact-gathering exercise by the five-member privacy board, which will issue a report outlining recommendations that will be submitted to President Barack Obama and Congress.

Another panelist, Kenneth Wainstein, who served in the Justice Department and White House during the Bush administration, defended the government programs and the role of the FISA court, saying the 2008 law was "carefully calibrated" and gave the court "an important role."

(Reporting by Lawrence Hurley; Editing by Howard Goller and Will Dunham)