Oct 15 2013

FISA Court: 1/4 of Surveillance Requests Undergo ‘Substantive’ Revisions

24.4 % of applications revised or withdrawn in informal back-and-forth process

Washington—Senate Intelligence Committee Chairman Dianne Feinstein (D-Calif.) today released a letter from Reggie Walton, presiding judge of the Foreign Intelligence Surveillance Court, stating that nearly one-quarter of all requests for electronic surveillance and physical searches submitted to the court are substantially revised during a review process before final submission.

“This statement from the presiding judge of the FISA Court makes it clear the court does not ‘rubber stamp’ requests for surveillance of terrorism suspects,” said Feinstein. “In fact, one in four applications undergo substantial revision during the court’s review process and others are withdrawn entirely. The FISA Court is tasked with conducting careful legal analysis of all administration requests, and these data reinforce my belief that the FISA Court is taking that mandate seriously.

Walton wrote, “During the three month period from July 1, 2013 through September 30, 2013, we have observed that 24.4% of matters submitted ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action.”

Walton further explained in the letter that because the annual statistics provided to Congress reflect only final applications submitted to the court, “these statistics do not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them.”

Text of the letter follows:

October 11, 2013

Honorable Dianne Feinstein
Chairman
Select Committee on Intelligence
United States Senate
Washington, D.C. 20510

Dear Madam Chairman:

On July 29, 2013, the Foreign Intelligence Surveillance Court (FISC) corresponded with the Senate Judiciary Committee in a response to questions about the Court’s practices (copy enclosed). In our response, we explained in greater detail the process by which the Court interacts with the executive branch. Among other things, we noted:

“The annual statistics provided to Congress by the Attorney General pursuant to 50 U.S.C. §§ 1807 and 1862(b)—frequently cited to in press reports as a suggestion that the Court’s approval rate of applications is over 99%—reflect only the number of final applications submitted to and acted on by the Court. These statistics do not reflect the fact that many applications are altered prior to final submission or even withheld from final submission entirely, often after an indication that a judge would not approve them.”

Our letter also stated, “In a typical week, the Court seeks additional information or modifies the terms proposed by the government in a significant percentage of cases.” We further indicated that the FISC was then just beginning a practice of collecting statistics on the rate at which such modifications occur. We are now ready to provide some initial statistics in this regard.

During the three month period from July 1, 2013 through September 30, 2013, we have observed that 24.4% of matters submitted ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action. This does not include, for example, mere typographical corrections. Although we have every reason to believe that this three month period is typical in terms of the historic rate of modifications, we will continue to collect these statistics for an additional period of time and we will inform you if those data suggest that the recent three months were anomalous. It should be noted, however, that these statistics are an attempt to measure the results of what are, typically, informal communications between the branches. Therefore, the determination of exactly when a modification is “substantial,” and whether it was caused solely by the FISC’s intervention, can be a judgment call.

We hope this information is helpful to Congress and the public in better understanding the role and operations of the FISC.

Sincerely,

Reggie B. Walton
Presiding Judge

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