There is plenty of reason to think that regular United States courts too readily allow surveilling people and searching their homes and property. But, in the US court authorized by the Foreign Intelligence Surveillance Act (FISA), there is not even a pretense of observing Fourth Amendment restraints.
The result is what many Americans who demanded a Bill of Rights be adopted in the early days of the United States sought to prevent from arising in America — routine, sweeping judicial decrees for invading people’s privacy based on little or no credible reason to suspect the people committed criminal acts.
In a Monday interview at Fox Business, legal scholar and former New Jersey state Judge Andrew Napolitano called out the FISA court for its extreme flaunting of constitutional restraints. Presenting a scenario where he is woken in the middle of the night by a call from the courthouse regarding an urgent warrant request that the state police are waiting in the lobby of his building to discuss with him, Napolitano illustrates the difference between the process to obtain a FISA court warrant and the process he employed as a judge. Napolitano explains.
"And they come into my living room, and we spend an hour going through what they have and how they can demonstrate to me that I should sign a piece of paper letting them break down somebody’s door at three in the morning in order to get evidence. It’s a give and take and a give and take, and I am satisfied that it is more likely than not that behind that door is evidence of a serious crime. The court has to go through that kind of give and take, give and take, give and take when they come to you with an emergency application for a warrant.
If the court blithely accepts what the government gives, it’s as much the court’s fault as the government. If the government knows that the court grants 99.9 percent of all warrants requested, which is an unbelievable number — a number never heard of in my career, then the government’s going to get lazy and sloppy, because they are going to walk in there saying 'we’re going to get this thing, we always do."
Watch Napolitano’s complete interview here:
The super-accommodative approach of the FISA court also opens the door to easily obtaining permission to search and surveil in order to fish for evidence of a criminal act to pin on someone, for information helpful in advancing an individual or company’s financial gain, for information the potential disclosure of which can be held over an individual to exert influence on him, or for information that can be leaked to the media for purposes including influencing an election, a congressional vote, or the confirmation decision on a presidential nominee.
While the FISA court’s activities are secret, the court did admit in 2013 that it had, during its several decades in existence, approved over 99.9 percent of the US government’s surveillance requests.