by Michael Yoakum
Impunity Watch Reporter, North America

WASHINGTON, D.C., United States – A former FISA Court judge voiced concerns on Tuesday about the lack of an adversarial system for the government to obtain wiretap and data collection warrants. James Robertson, a former federal district court judge said that the FISA Court has essentially become “something like an administrative agency” because only the government is represented in warrant requests.

Robertson spoke Tuesday before a federal oversight board directed by President Obama aimed at scrutinizing government spying. “Anyone who has been a judge will tell you a judge needs to hear both sides of a case,” Robertson explained. Robertson, however, defended the FISA Court as a whole, saying that it remained independent in its proceedings. He further praised the court system for requiring “scrupulous and fastidious” work from the Department of Justice in obtaining warrants during his tenure.

Robertson placed blame on a 2008 piece of reform legislation that expanded the government’s authority over the FISA Court. Under the 2008 reform, the government may compel the FISA court to approve entire surveillance systems instead of surveillance warrants targeted as individual suspects.

The 2008 reform attracted little public attention until former NSA contractor Edward Snowden released classified information detailing an NSA program to collect cellphone metadata from American citizens. Robertson said that he was “stunned” by the news that the FISA court created law that allowed the NSA to gather information not only to find terrorist suspects, but also espionage and cyber-attack suspects.

Royce Lamberth, who was the chief judge on the FISA Court from 1995 to 2002, defended the Court in its entirety. Lamberth took offense to the notion that the Court gave “rubber stamp” approval for warrant requests, telling NPR, “We’re approving it because it should be approved, because it’s valid, because what the government’s doing here is the kinds of things we should be doing.”

Lamberth recalled “bloodcurdling” briefs in the wake of 9/11 that predicted a follow-up attack as evidence of why the government cannot back down on national security.

Lamberth has made many controversial decisions in his career and recently made the news for approving a search warrant for the email and phone records of a Fox News reporter.

For more information, please see:

UPI – NSA tapped fiber cables to collect data – 10 July 2013

ABC News – Former Judge Admits Flaws in Secret Court – 9 July 2013

Boston.com – Former FISA judge says secret court is flawed – 9 July 2013

CBS News – Former judge admits flaws with secret FISA court – 9 July 2013

NPR – Ex-FISA Court Judge Reflects: After 9/11, ‘Bloodcurdling’ Briefings – 3 July 2013