James G. Carr sat on the FISA court after 9/11. He understands the processes at work and recommends the creation of what can only be described as a cadre of secret public defenders. Carr’s response is a good intervention, but his starting premise assumes that the court itself should exist. I’m going to leave that alone since the court does exist and I’m not strong enough on US constitutional issues to suggest adequate reasons to dissasemble FISA.
Moving on to the court itself, however, one of the core problems Carr identifies is the low standard of probable cause in the FISA system. And yet he does not suggest that the test should be strengthened. Which I find surprising given the observation that:
In an ordinary criminal case, the adversarial process assures legal representation of the defendant. Clearly, in top-secret cases involving potential surveillance targets, a lawyer cannot, in the conventional sense, represent the target.
The lack of conventional rights suggests that a stronger set of prohibitions protecting a potential target (note the language – not a defendant, a target) is needed.
Carr also notes that at the moment the only party who can appeal a FISA ruling is the governement, there is no mechanism for the target to appeal the ruling of the court. Lawyers assigned to FISA to specifically argue against applications and appeal them when an application is granted would go some way towards protecting the rights of American citizens – even if it does nothing for the rest of us.
Worth a read.