NPR Pretends FISA Court Is Not a Rubber Stamp

by | Sep 21, 2017

NPR Pretends FISA Court Is Not a Rubber Stamp

by | Sep 21, 2017

Credit: Christiaan Colen, Flickr

On Tuesday’s episode of Up First (9/19/2017), NPR briefly reported on the news that Paul Manafort, President Trump’s sometime campaign manager, had been subject to wiretapping, both during the campaign and after the election.

This is a big news story and NPR was certainly right to cover it. The problem lies in the way they covered it–with a predictable, but completely unjustified deference to the national security state.

Let’s take a quick look at what they said so you can see for yourself. The exchange begins right after a guest journalist explained, correctly, that the new report on Manafort’s wiretapping means that the Russia investigation (that is, the “Russia stuff”) is still alive and well. Here’s the relevant portion (emphasis added):

David Greene, Co-Host: Mary Louise, when you’re not hosting with us, you cover things like this ‘Russia stuff’, the investigation. Is this a big development?

Mary Louise Kelly, Co-Host: This is a big deal, yeah, I mean what leaps out at me are two quick things. One–the standard of evidence that investigators would have to get a FISA warrant from the special FISA court, the Foreign Intelligence Surveillance [Act] Court, to get a wiretap on the President’s campaign manager–that standard would be high. They must think they have something.

Now, you should also know that Mary Louise Kelly is NPR’s national security correspondent. This isn’t just some ancillary topic she’s being asked about because she happened to be hosting. In theory, this should be well within her area of expertise.

Given this, you would hope that she would be knowledgeable about the FISA Court. And, to be fair, she is right when she says that this is the court that would have to sign off on a warrant like this. But things go off the rails when she asserts that the standard of evidence required to get such a warrant would be high.

This assertion of high evidence standards is offered as a flat fact, but there are very good reasons to question it.

For one thing, the FISA Court faces little accountability or transparency. By design, the whole operation is shrouded in secrecy. That means egregious decisions could be made and no one in the public would know about it, unless the government decides to declassify it or a whistleblower leaks it. Needless to say, that doesn’t bode well for accountability.

Another structural issue with the FISA Court is that, unlike most aspects of the American justice system, it is not adversarial in nature. The Court hears the government’s argument for getting a warrant, but they don’t hear any counterarguments. This system would naturally give the court a bias toward approval, since the judges themselves are the only ones on hand to identify the flaws in the government’s arguments.

Given these factors, perhaps it is not surprising that the FISA Court almost never rejects one of the government’s requests. Over a 33-year period starting around the court’s creation, from 1979-2013, the court received some 33,900 requests from the government. During that time, it rejected 11. Not 1100, not 11,000, just 11–or 0.03%.

And things haven’t changed much since then. For the year of 2015, The Guardian reported that the court rejected 0 requests out of a total of 1,457 requests.

It’s possible that these incredible statistics slightly overstate the amount of rubber-stamping that gets carried out by the FISA Court. For instance, some requests are modified by the court without being formally denied–in 2015, that total came to 80, which was still a small portion of the overall total. We also have no good way to know how significant or trivial the modifications were.

Since the information is limited, we can’t say for certain exactly how perfunctory or meaningful the review process is. But when we consider the lopsided approval figures and the fact that the structure of the court is clearly tilted towards approval, the balance of the evidence seems to suggest that the FISA Court is not as skeptical or thorough as we might like.

All of which brings us back to our friends at NPR. Kelly suggested that the FISA Court’s alleged approval of a wiretap request showed that the government must have some compelling evidence against the target. But this argument is based on little more than faith. Everything else we can discern about the FISA Court actually points in the opposite direction–that the deck is stacked in favor of approval.

So the news that the FISA Court approved a wiretap may indeed mean that the government has put together a solid case. But based on the above, it might just mean that the government lawyer making the request had a pulse, and that’s all that was required.

In any case, it’s reckless and misleading for NPR to uncritically assert that the FISA Court is a rigorous process.

It also reminds us of the one bias you can reliably count on across all outlets in the mainstream media. NPR may dislike the Republicans and Fox may criticize the Democrats, but all of them agree that the US national security state is beyond reproach.

About Eric Schuler

Eric Schuler is a contributor to The Libertarian Institute, with a focus on economics and US foreign policy. Follow his work here and on Twitter.

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