Former FISA judge says secret court is flawed

Opinion • Targets of scrutiny are not fairly represented, he says.

This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Washington • A former federal judge who served on a secret court overseeing the National Security Agency's secret surveillance programs said Tuesday the panel is independent but flawed because only the government's side is represented effectively in its deliberations.

"Anyone who has been a judge will tell you a judge needs to hear both sides of a case," said James Robertson, a former federal district judge based in Washington who served on the secret Foreign Intelligence Surveillance Act (FISA) court for three years between 2002 and 2005. Robertson spoke during a Tuesday hearing of a federal oversight board directed by President Barack Obama to scrutinize government spying.

Robertson questioned whether the secret FISA court should provide overall legal approval for the surveillance programs, saying the court "has turned into something like an administrative agency." He is one of several judges with FISA experience who have spoken out recently to affirm the court's independence. But Robertson is the first to publicly air concerns about how the court grapples with the government's vast secret data collection programs.

Much of the NSA's surveillance is overseen by the FISA court, which meets in secret and renders rulings that are classified. Some of these rulings also have likely been disclosed by Edward Snowden, the NSA systems analyst who leaked significant information about the spying program.

After Snowden began exposing the NSA's operations in June, Obama instructed the U.S. Privacy and Civil Liberties Board to lead a "national conversation" about the secret programs. The board, which took testimony Tuesday on the secret surveillance programs, has been given several secret briefings by national security officials and plans a comprehensive inquiry and a public report on the matter.

Robertson said that FISA court judges have been scrupulous in pushing back at times against the government, repeatedly sending back flawed warrants. He also said he came away from his FISA experience "deeply impressed by the careful, scrupulous and fastidious work by the Justice Department" in obtaining secret surveillance warrants.

But he warned that Congress' 2008 reform of the FISA system expanded the government's authority.

As the FISA court's role has expanded, Robertson said, the system has failed to add authoritative legal adversaries who could act as effective checks on the government's programs in secret court proceedings.