Two FISA Data Questions for Joel Brenner

Although Joel's post from last night cites the wrong letter from Judge Walton to Senators Leahy and Grassley, this week's letter, which definitely does not bury the lede, does provide significant data on the interactions between the FISA Court and the government. Specifically, Judge Walton explains that, over the three months ending on September 1, "we have observed that 24.4 percent of matters submitted ultimately involved substantive changes to the information provided by the government or the authorities granted as a result of Court inquiry or action." And although the letter doesn't give any sense of what these changes look like, it emphasizes that they're more than "mere typographical corrections." Hence Joel's frustration with the media's purported refusal to note just how much more of a check the FISA Court must necessarily be on the government than the ordinary district courts are in ordinary wiretap cases. (I'm not actually sure why Joel thinks this story has gone unnoticed; plenty of outlets have covered it!) In any event, Joel's post neglects two questions that, to me, are vital to any effort to draw analogies between the FISA and ordinary warrant processes:

1. How many of the "ordinary" warrants issued by federal district courts ex parte and in camera are subsequently subjected to vigorous judicial review (and invalidated) in the context of motions to suppress in criminal cases and/or civil suits for damages for unlawful surveillance? In the FISA context, we know the answer: 0.
2. In any event, in assessing the significance of the 24.4% figure, shouldn't the nature of the substantive changes to "the information provided by the government or the authorities granted" be relevant to any conclusions about what this data tells us re: the meaningfulness of the FISA Court's review? Asking for more information about minimization procedures, for example, strikes me as a far cry from substantively reducing the scope of the actual surveillance authority. But there's no way to tell from the data how much of the 24.4% looks more like the former than the latter.

To be clear, I share Joel's view that the FISA Court is not a rubber stamp, and these two questions are not meant to suggest to the contrary. But the fact that the FISA Court's actions are subject to no adversarial process, post-hoc review, or appellate scrutiny suggests to me that, whatever conclusions we might derive from such un-differentiated data, there's still a need (and room) to introduce greater accountability and oversight into the FISA process. Simply put, there's a whole lot of real estate between "rubber stamp" and vigorous judicial oversight.