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A Former Judge on the Secret Privacy Court Says He Quit Over Surveillance

A former judge from the Foreign Intelligence Surveillance Act Court tells a federal privacy watchdog group that the court "has turned into something like an administrative agency." He also admitted that his early departure from the Court was in protest over government surveillance.

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When we looked at the 16 people responsible for protecting your privacy, we could not have foreseen the development that emerged Tuesday morning. One former member of the Foreign Intelligence Surveillance Act Court — eleven of those 16 protectors — told the president's Privacy and Civil Liberties Board — the other five — that the court "has turned into something like an administrative agency." That judge, James Robertson, also told the group that his seven-year term ended after only three when he quit due to the government's warrantless wiretapping.

Robertson's appearance before the civil liberties board was at the group's third meeting in its seven-year history, and its first public one since Edward Snowden's leak. (The first came in late June.) The Associated Press reports Robertson told the group that he "asked to join the FISA court 'to see what it was up to.'" Then he found out.

Robertson quit the FISA court in 2005, days after the New York Times revealed widespread NSA warrantless wiretapping under President George W. Bush's administration. Robertson had previously refused to explain his decision. But during a break in the hearing Tuesday he confirmed to the AP that he had "resigned in protest because the Bush administration was bypassing the court on warrantless wiretaps."

It's important to note that he didn't quit because of the court's approval of the system. That came later, after the 2006 Patriot Act extension approved widespread data collection — with the FISA court's reassessment of what "relevant" evidence was.

That approval seems to comport with Robertson's representation of the group. While other former FISA court judges, like Colleen Kollar-Kotelly, argue that the perception of the body as a rubber stamp is inaccurate — an argument made again today by Obama's pick to run the FBI — Robertson doesn't seem as willing to rise to the body's defense. "[H]e warned that Congress' 2008 reform of the FISA system expanded the government's authority by forcing the court to approve entire surveillance systems, not just surveillance warrants, as it previously handled," the AP reports. It was this switch that prompted Robertson's suggestion that the court be considered an "administrative" — not judicial — body.

That's in part because the court doesn't fulfill the demands of legal consideration. When the court hears arguments from the government on its desire to surveil a target or get approval for its surveillance systems, there is no legal argument presented in opposition. "This process," Robertson told the board, "needs an adversary."

There's a caveat to Robertson's testimony. While the five-member Board has been tasked with assessing the government's privacy protection, there's not a lot it can do about it. It serves in an advisory role to the president — meaning that Obama can do with its recommendations whatever he wishes, including nothing. Today's testimony, then, was a microcosm of the broader situation: A whistleblower hoping to bring the untoward behavior of a secret, powerful body to the attention of the American public. And, as in the bigger picture, it's not likely to inspire much change within that powerful organization. The way Robertson could have made the most difference, perhaps, was by staying on the court.

Photo: Robertson testifies. (AP)

This article is from the archive of our partner The Wire.