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1st Cir. Judge Bruce Selya Speaks About FISA Court

By Aditi Mukherji, JD on February 13, 2014 | Last updated on March 21, 2019

Curiosity and controversy continues to mount over the National Security Agency's surveillance programs.

Bruce Selya, senior federal judge on the First Circuit, gave a talk this week on the Foreign Intelligence Surveillance Court, explaining the inner workings of the secret court.

The lecture, entitled "The View from Inside the FISA Courts," was the first in a series of security seminars sponsored by the Watson Institute for International Studies at Brown University as part of its ongoing expansion and redesign.

FISCOR and FISC Seminar

According to Richard Locke, director of the Watson Institute, the goal of the seminar was to open dialogue on how to protect national security without eroding the freedom and privacy of individual citizens, the Brown Daily Herald reports.

Selya was a former chief judge of the U.S. Foreign Intelligence Surveillance Court of Review. During his talk, he described some of the FISCOR and FISC proceedings.

But alas, the judge didn't divulge a whole lot that we didn't already know: He explained the courts role of approving, denying or suggesting amendments to applications for surveillance warrants.

"FISC Approves 73% of Applications"

One interesting point he made was that the FISC's 99 percent approval rates are misleading. He said in reality, only 73 percent of applications are actually accepted. This is because part of the courts role is to "weed out" and encourage withdrawal of applications that would be denied in later stages of review, Selya said.

It's an important point because media outlets often tout the 99 percent figure as a symbol signifying the U.S. government's virtually unchecked surveillance power. Of course, 73 percent is still remarkably high, but it doesn't fit the "unchecked power" narrative quite as nicely as 99 percent.

However, the 73 percent figure raises a slew of other questions: about the level of scrutiny involved, whether the government has a pulse on the FISC's approval system, and whether there's communication happening between the parties in a less formal manner that isn't making it into court documents.

Opining for Greater Transparency

Selya also underscored the need for greater transparency of the process. He called for greater transparency and "minimalization," in which surveillance programs reduce their amounts of inadvertently acquired information not crucial to their goals. That's not a particularly new revelation. In November, the FISC ordered the DOJ to turn over their prior rulings that interpreted Section 215 of the PATRIOT Act. The DOJ refused the order, but that's a separate matter.

At bottom, Selya deemed the secrecy of the FISC proceedings a necessary evil, a "normal" and "precedented" practice in the intelligence and surveillance community. "Opinions of the court are kept secret long after dealings are resolved," he said, adding that he advocates publishing more judicial opinions, but faces difficulties with "national security officials who do not want to declassify anything."

Rhetorical question of the day: feel like you understand the inner workings of the FISC any better, or is still shrouded in mystery?

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