Secret court’s effectiveness dependent on U.S. government being honest, top judge admits

The Washington Post

The leader of the secret court that is supposed to provide critical oversight of the U.S. government’s vast spying programs says its ability do so is limited and that it must trust the government to report when it improperly spies on Americans.

The chief judge of the Foreign Intelligence Surveillance Court says it lacks the tools to independently verify how often the federal government’s surveillance breaks the court’s rules that aim to protect Americans’ privacy. Without taking drastic steps, it also cannot check the veracity of the government’s assertions that the violations its staff members report are unintentional mistakes.

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie Walton, said in a written statement to The Washington Post. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing compliance with its orders.”

Walton’s comments came in response to internal government records obtained by the Post showing that National Security Agency employees in Washington overstepped their authority on spy programs thousands of times per year.

The court’s description of its practical limitations contrasts with repeated assurances from the Obama administration and intelligence agency leaders that the FISC provides central checks and balances on the government’s broad spying efforts. They have said that Americans should feel comfortable that the secret intelligence court provides robust oversight of government surveillance and protects their privacy from rogue intrusions.

President Barack Obama and other government leaders have emphasized the court’s oversight role in the wake of revelations this year that the government is vacuuming up “metadata” on Americans’ telephone and Internet communications.

“We also have federal judges that we’ve put in place who are not subject to political pressure,” Obama said at a news conference in June. “They’ve got lifetime tenure as federal judges, and they’re empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused.”

Privacy advocates and others in government have voiced concerns about the ability of overseers to police secret programs of immense legal and technological complexity. Several members of the House and Senate intelligence committees told the Post last week that they face numerous obstacles and constraints in questioning spy agency officials about their work.

In 2009, for example, a Justice Department review uncovered a major operational glitch that had led to significant violations of the court’s order and notified the court, according to records that were declassified July 31.

The government described the problem as one of “over-collection” of metadata records.