The chief judge of the court that oversees the act says it is not:
This week, the chief judge of the Foreign Intelligence Surveillance Court (FISC) defended his court as an adequate bureaucratic check on government surveillance, denying that the court is merely a "rubber stamp," as critics have argued.
The court, after all, famously approves nearly all of the government’s final applications for surveillance.
"It is a kangaroo court with a rubber stamp," Russell Tice, a former National Security Agency analyst-turned-whistleblower, told The Guardian in early June 2013.
But as FISC Judge Reggie Walton noted in July of this year, that view doesn’t take into account the collaboration between the FISC and the government to make surveillance applications more palatable.
The last sentence is the key. This is plausible.
In the 1990s, I was the local keeper of the knowledge base of the arcane realm of administrative rules in Michigan. Being on that committee was "nitpickers' Heaven" as one legislator put it. Until the legislature's oversight role was gutted in the late 1990s (with the short-sighted cooperation of the legislature itself, which apparently couldn't imagine a future when the governor's office would be held by the other party), executive branch rules had to run the gauntlet of the committee which made sure that the rules implemented what the statutes intended.
Critics of the rules promulgation process said the legislature's role was minimal because very few proposed rules were rejected by the committee. But this missed the real effect of the Joint Committee on Administrative Rules. Agencies would withdraw their proposed rules when they ran into problems with the legislators and only the most stubborn agency heads would push their unsatisfactory rules forward for a vote that they knew they'd lose. By the rejection statistics, JCAR was useless. In reality, JCAR was the power in the process that could not be ignored by agencies.
So now the state legislature's only real way to make sure agencies don't draft rules that undermine statutes is to deny the agencies authority to draft rules and put that often very technical stuff in the statutes. Which is stupid. Oh well.
But I digress.
So if the FISC statistics reflect that the federal government was compelled to draft or redraft their requests for surveillance authority to be acceptable to FISC judges, the approval rate that on the surface looks like a "rubber stamp" means no such thing.
I remain conflicted about the revelations about the domestic surveillance program. Metadata collection isn't so bad. That isn't protected, as opposed to the content. It can show patterns of how dots are connected. If actual content is stored, that is another issue. If it is stored for years or decades on end, that's even worse. If the government can't guarantee that the content is secured while it is in government custody, that's worse than that.
Even the scope of metadata collection could cross lines of acceptability in an age of data mining, I'll admit. While metadata has been ruled as not being protected by Constitutional protections, what made sense in an age of 3 x 5 cards may not be acceptable in an age of powerful computer analysis. Perhaps laws are needed to correct that evolution of potential for abuse.
I'm prepared to defend the surveillance if it is sufficiently limited and has proper oversight. I didn't swarm over Bush when this program was revealed in his term of office and I won't automatically assume bad motives in the Obama administration. (Can Obama supporters who thought impeachment was appropriate for Bush say the same thing now?)
I'm concerned enough that the program might no longer fall under those parameters to believe a thorough review of the laws, procedures, and personnel is in order.
