So Much for Judicial Review

Wow, it is a wonder that the FBI works so hard to gain warrant-less search powers when the judiciary seems hell-bent on rubber stamping every request that comes along

The secretive Foreign Intelligence Surveillance Court approved all 1,506 government requests to electronically monitor suspected “agents” of a foreign power or terrorists on US soil last year, according to a Justice Department report released via the Freedom of Information Act....

“The FISC did not deny any applications in whole, or in part,” according to the April 19 report to Sen. Majority Leader Harry Reid, (D-NV.)

The 11-member court denied two of 1,329 applications for domestic-intelligence surveillance in 2009. The FBI is the primary agency making those requests.

This is the problem with such a narrow court - it tends to get co-opted by the FBI in the same way that regulatory agencies get captured by the groups they regulate.  I am not sure how the court is picked, but some sort of rotation of the membership might help bring a bit more skepticism to the group


  1. lj:

    You are probably right, but the mere presence of a check against abuse is usually enough to keep the abusers inline. So what you might have here is selection bias (if I am using that term correctly). Having served for a year on a federal grand jury, I got a good taste of how this model works. We never rejected a request for indictment, but there were many requests that never got made because the case was just not developing to the point where the grand jury was convinced, so it just died on the vine.

  2. Dr. T:

    When Clinton was president, exactly one such FBI request was denied in 1999. That was the request to monitor physicist Wen Ho Lee who was suspected of stealing nuclear secrets from Los Alamos National Laboratory and sending them to the Chinese. Lee was able to leave the USA. Is anyone surprised that the Gore for President campaign received millions of dollars from agents of the Chinese government?

    The moral is, if you don't want a warrantless monitoring request to be granted, then you need to be a government that is willing to bribe the President and Vice President.

  3. Noah:

    While you think the FBI evil incarnate requiring a check from the courts, the FBI isn't dumb and has learned long ago how to put together a case that passes muster.

  4. gadfly:

    If Dingy Harry is issuing the report, there is reason to believe that it is incorrect or slanted or both.

    Sorry -- but the man is a habitual liar with a malevolent agenda.

  5. ParatrooperJJ:

    The judges are rotated. Eleven district judges with a seven year term each selected by the Chief Justice. They can't serve more than once.

  6. Steve:

    Because no request was denied is not evidence that any was deficient or unworthy of being approved, no?

  7. Matthew Brown:

    @Dr. T: I'm afraid your statement about Wen Ho Lee disagrees rather substantially from commonly accepted accounts. No evidence was ever uncovered that Lee did anything but mishandle low-level classified info in a very amateurish fashion.

    Sufficient to yank his clearances and fire him. Insufficient to conclude anything further.

    Given the amount of government effort expended in trying to find anything, I'm fairly satisfied that he wasn't the source of any real intelligence gained by the Chinese.

  8. Hasdrubal:

    What's the rate of acceptance of normal FBI warrant requests? It would help to have something to compare that 1,506 requests, 0 turned down statistic with.

    I wouldn't expect a 100% success rate, they don't even get that on Law & Order, but I would expect it to be pretty high.