Kafka and the Foreign Intelligence Surveillance Court (FISA)

Quiz: Just how Kafkaesque is the court that oversees NSA spying? by Alvaro Bedoya and Ben Sobel.

From the post:

When Edward Snowden first went public, he did it by leaking a 4-page order from a secret court called the Foreign Intelligence Surveillance Court, or FISA court. Founded in 1978 after the Watergate scandal and investigations by the Church Committee, the FISA court was supposed to be a bulwark against secret government surveillance. In 2006, it authorized the NSA call records program – the single largest domestic surveillance program in American history.

“The court” in Franz Kafka’s novel The Trial is a shadowy tribunal that tries (and executes) Josef K., the story’s protagonist, without informing him of the crime he’s charged with, the witnesses against him, or how he can defend himself. (Worth noting: The FISA court doesn’t “try” anyone. Also, it doesn’t kill people.)

Congress is debating a bill that would make the FISA court more transparent. In the meantime, can you tell the difference between the FISA court and Kafka’s court?

After you finish the quiz, if you haven’t read The Trial by Franz Kafka, you should.

I got 7/11. What’s your score?

The FISA court is an illusion of due process that has been foisted off on American citizens.

To be fair, the number of rejected search or arrest warrants in regular courts is as tiny as the number of rejected applications in FISA court. (One study reports 1 rejected search warrant out of 1,748. Craig D. Uchida, Timothy S. Bynum, Search Warrants, Motions to Suppress and Lost Cases: The Effects of the Exclusionary Rule in Seven Jurisdictions, 81 J. Crim. L. & Criminology 1034 (1990-1991), at page: 1058)

However, any warrant issued by a regular court, including the affidavit setting forth “probable cause” becomes public. Both the police and judicial officers know the basis for warrants will be seen by others, which encourages following the rules for probable cause.

Contrast that with the secret warrants and the basis for secret warrants from the FISA court. There is no opportunity for the public to become informed about the activities of the FISA courts or the results of the warrants that it issues. The non-public nature of the FISA court deprives voters of the ability to effectively voice concerns about the FISA court.

The only effective way to dispel the illusion that secrecy is required for the FISA court is for there to be massive and repetitive leaks of FISA applications and opinions. Just like with the Pentagon Papers, the sky will not fall and the public will learn the FISA court was hiding widespread invasions of privacy based on the thinnest tissues of fantasy from intelligence officers.

If you think I am wrong about the FISA court, name a single government leak that did not reveal the government breaking the law, attempting to conceal incompetence or avoid accountability. Suggestions?

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