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U.S. must fix secret FISA courts, retired federal judge declares

By Catholic Online (NEWS CONSORTIUM)
July 10th, 2013
Catholic Online (www.catholic.org)

Retired federal judge James Robertson, who formerly granted government surveillance requests has become openly critical of the system of secret courts following revelations by NSA whistleblower Edward Snowden. Retired from the District of Columbia circuit in 2010, Robertson was one of a select group of judges who presided over the so-called Foreign Intelligence Surveillance Act, or FISA courts.

LOS ANGELES, CA (Catholic online) - The FISA court was originally intended to provide legal oversight and protect against unnecessary privacy intrusions. Robertson says he's shocked to hear of recent changes, which allow far more far-reaching authorizations of programs such as the gathering of U.S. phone records. He has called for a reform of the system to allow counter-arguments to be heard.

Judge Robertson said that without an adversarial debate, the courts should not be expected to create a secret body of law that authorized such broad surveillance programs.

"A judge has to hear both sides of a case before deciding," Robertson, speaking as a witness during the first public hearings into the Snowden revelations. He spoke to members of a Privacy and Civil Liberties Oversight Board, or PCLOB recently appointed by President Obama.

"What FISA does is not adjudication, but approval. This works just fine when it deals with individual applications for warrants, but the 2008 amendment has turned the Fisa court into administrative agency making rules for others to follow.

"It is not the bailiwick of judges to make policy," he added, the most serious criticism yet from a recently serving FISA judge.

Fisa judges had previously spoken anonymously to defend the court process.

Robertson says he was generally impressed with how "careful, fastidious and scrupulous" the court process had been, but felt the so-called ex parte system (where only the government is able to make its case to the judge) needed urgent reform.

"This process needs an adversary. If it's not the ACLU or Amnesty, perhaps the PCLOB can be that adversary."

Members of the oversight board shook their heads and rolled their eyes when this suggestion was made. The board has previously been described by Congress as an "ineffective watchdog."

The workshop also heard from a number of other experts who called for the decisions of the FISA courts to be made public later that day.

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