May 3, 2013
In the mid-1970s, an investigation by the US Senate, conducted by the Church Committee, uncovered decades of serious, systemic abuse by the US government of its eavesdropping powers: listening in on the telephone calls of civil rights leaders, reading the mail of political opponents, spying on anti-war groups. The supposed lesson learned from this was that political leaders will inevitably abuse their surveillance powers if they are permitted to exercise them in the dark and without meaningful oversight. The “solution” was the enactment of a law – the 1978 Foreign Intelligence Surveillance Act (Fisa) – that made it a criminal offense for government officials to eavesdrop on the electronic communications of Americans without first obtaining a warrant from the newly created Fisa court.
From the start, the Fisa court was a radical perversion of the judicial process. It convened in total secrecy and its rulings were classified. The standard the government had to meet was not the traditional “probable cause” burden imposed by the Fourth Amendment but a significantly diluted standard. There was nothing adversarial about the proceeding: only the Justice Department (DOJ) was permitted to be present, but not any lawyers for the targets of the eavesdropping request, who were not notified. Reflecting its utter lack of real independence, the court itself was housed in the DOJ.
And, and was totally predictable, the court barely ever rejected a government request for eavesdropping. From its inception, it was the ultimate rubber-stamp court, having rejected a total of zero government applications – zero – in its first 24 years of existence, while approving many thousands. In its total 34 year history – from 1978 through 2012 – the Fisa court has rejected a grand total of 11 government applications, while approving more than 20,000.