Former FISA Judge Questions Court's Approval Of Surveillance

A former judge for the secret Foreign Intelligence Surveillance Court raised questions about the court's approval of government data collection programs on Tuesday. He was testifying before the Privacy and Civil Liberties Oversight Board, an independent agency considering recently uncovered surveillance efforts.

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There was more about surveillance and the government's collection of phone and Internet records across town in Washington today. A retired judge, who used to serve on a secret surveillance court, questioned that court's role as overseer of the National Security Agency. He was testifying before a new privacy board. As NPR's Larry Abramson reports, that board is considering whether government surveillance programs are constitutional and whether they need additional safeguards.

LARRY ABRAMSON, BYLINE: Judge James Robertson served on the Foreign Intelligence Surveillance court until 2005. That's when he resigned in protest over the Bush administration's warrantless wiretapping program which bypassed the court. Today, Robertson spoke about the role that the court has assumed since he left and its approval of the surveillance programs that have been unveiled by leaker Edward Snowden.

Robertson is critical of changes that Congress made in 2008. That's when amendments to surveillance law let the court approve not simply warrants targeted at individuals, but collection programs aimed at large volumes of data.

JAMES ROBERTSON: 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.

ABRAMSON: Robertson was testifying before a workshop convened by the Privacy and Civil Liberties Oversight Board, the PCLOB. The board is supposed to make sure that all anti-terror programs respect civil liberties. The Snowden leaks have given this agency a lot to discuss as it looks for ways to improve the process. Judge Robertson says one change should focus on how the secret court decides whether to approve warrants. He notes that judges only hear from one side: government lawyers seeking approval of wiretaps.

ROBERTSON: If it's not the ACLU or Amnesty International, perhaps the PCLOB itself could have some role as an - as a kind of an institutional adversary to challenge and take the other side of anything that is presented to the FISA court.

ABRAMSON: Civil liberties groups like the idea of a surveillance ombudsman, but former government officials worry about gumming up the FISA process, which they said Congress tried to streamline for the digital era. Steven Bradbury worked in George W. Bush's Justice Department. He says the intelligence court is not a rubber stamp, but rather an important check on executive power.

STEVEN BRADBURY: Before 1978, surveillance for foreign intelligence purposes was conducted by the president without court approval.

ABRAMSON: And former Justice Department attorney Kenneth Wainstein says it would be a mistake to stop these programs if there's no evidence the data gathered has actually been misused.

KENNETH WAINSTEIN: What I find concerning is the notion that if you have a strong but lawful and appropriate investigative tool in place now, that you should think twice about maintaining it because of some speculative concern that down the road it could be misused.

ABRAMSON: Wainstein said the government's collection of calling records is legal, and throwing the information away would be foolish.

WAINSTEIN: I think that's a recipe for disaster. I think if we take that approach, we'll end up walking right back into another 9/11.

ABRAMSON: The discussion followed a familiar path: Civil liberties groups attacked government overreach, former officials insisted the programs already have tight safeguards. But one board member urged both sides to abandon their set positions so that the board can help restore trust in anti-terror efforts. Larry Abramson, NPR News, Washington.

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