Ex-Judge on FISA Court Points Out Flaw in System

James Robertson says FISA judges need to hear both sides on surveillance issues

By John Johnson,  Newser Staff

Posted Jul 10, 2013 12:43 PM CDT

(Newser) – The NSA gets legal permission for its broad surveillance programs from the secret court set up under the Foreign Intelligence Surveillance Act. And for the first time, one of the judges that sat on the court is coming forward to criticize the FISA process, reports the Guardian. Retired federal judge James Robertson says it makes little sense that when the government goes before the court seeking permission to gather data, the judges hear only from the government itself. "Anyone who has been a judge will tell you a judge needs to hear both sides of a case," Robertson testified yesterday before a federal oversight board.

"This process needs an adversary," he said. "If it's not the ACLU or Amnesty, perhaps the PCLOB can be that adversary." (Some members of the newly appointed Privacy and Civil Liberties Oversight Board rolled their eyes at the suggestion, notes the Guardian.) As it stands, the court isn't so much a court as an "administrative agency," he charged. Also of note: Robertson served on the FISA court from 2002 to 2005, and he confirmed for the first time yesterday that he "resigned in protest because the Bush administration was bypassing the court on warrantless wiretaps," reports the AP.

Former Foreign Intelligence Surveillance Court Judge James Robertson testifies in Washington Tuesday.
Former Foreign Intelligence Surveillance Court Judge James Robertson testifies in Washington Tuesday.   (AP Photo/Cliff Owen)
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