Surveillance court judge defends role

The Washington Post

Recent leaks of classified documents have pointed to the role of a special court in enabling the government’s secret surveillance programs, but members of the court are chafing at the suggestion that they were collaborating with the executive branch.

A classified 2009 draft report by the National Security Agency’s inspector general relayed some details about the interaction between the court’s judges and the NSA, which sought approval for the Bush administration’s top-secret domestic surveillance programs.

U.S. District Judge Colleen Kollar-Kotelly, the former chief judge of the Foreign Intelligence Surveillance Court, took the highly unusual step Friday of voicing open frustration at the account in the report and the court’s inability to explain its decisions. “That draft report contains major omissions, and some inaccuracies, regarding the actions I took as presiding judge of the FISC and my interactions with executive branch officials,” Kollar-Kotelly said in her first public comment describing her work on the intelligence court.

The document portrays the surveillance court as “amenable” to the government’s legal theory to “re-create” authority for the Internet metadata program that had initially been authorized by President George W. Bush without court or congressional approval. The program was shut down in March 2004.

Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and the Justice Department in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.

“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”

The perception that the court works too closely with the government arises in large part from the tribunal’s “ex parte” nature, which means that unlike in a traditional court, there is no legal sparring between adversaries with the judge as arbiter. Instead, a Justice Department official makes the case for the government agency seeking permission to carry out surveillance inside the United States. No one speaks for the target of the surveillance or the company that is ordered to allow its networks to be tapped or to turn over its customers’ data.

Some critics say the court is a rubber stamp for government investigators because it almost never has turned down a warrant application. However, that high batting average doesn’t take into account changes the court requires in some requests and other applications that the government withdraws.