What Happened to that Third Branch Oversight?

Judge Colleen Kollar-Kotelly is pissed.

After spending 2002 to 2006 as Chief Judge of the FISA Court struggling to keep parts of the American legal system walled off from a rogue surveillance program, she read the classified account the NSA’s Inspector General wrote of her efforts. And while that report does say Kollar-Kotelly was the only one who managed to sneak a peek at a Presidential Authorization authorizing the illegal program, she doesn’t believe it reflects the several efforts she made to reel in the program.

“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” Kollar-Kotelly said in a statement to The Post.


Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.

“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”

The WaPo story reporting on her objections makes no mention of the role one FISC law clerk — who got briefed into the program before any of the other FISC judges — played in this process, something I’m pretty curious about.

It does, however, recall two incidents where Kollar-Kotelly took measures to crack down on the illegal program, which Carol Leonnig reported back in 2006.

Both [Kollar-Kotelly and her predecessor Royce Lamberth] expressed concern to senior officials that the president’s program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions. Yet the judges believed they did not have the authority to rule on the president’s power to order the eavesdropping, government sources said, and focused instead on protecting the integrity of the FISA process.


In 2004, [DOJ Office of Intelligence Policy and Review Counsel James] Baker warned Kollar-Kotelly he had a problem with [a “federal screening system that the judges had insisted upon to shield the court from tainted information”]. He had concluded that the NSA was not providing him with a complete and updated list of the people it had monitored, so Justice could not definitively know — and could not alert the court — if it was seeking FISA warrants for people already spied on, government officials said.

Kollar-Kotelly complained to then-Attorney General John D. Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high-level Justice officials certify the information was complete — or face possible perjury charges.

In 2005, Baker learned that at least one government application for a FISA warrant probably contained NSA information that was not made clear to the judges, the government officials said. Some administration officials explained to Kollar-Kotelly that a low-level Defense Department employee unfamiliar with court disclosure procedures had made a mistake.

Though the NSA IG Report mentions violations that occurred before 2003, it makes no mention of these violations.

What good is an IG Report that gives no idea of how often and persistent violations are?

That said, today’s WaPo story provides this as the solution to our distorted view of the FISA Court’s role in rubber-stamping this massive dragnet.

A former senior Justice Department official, who spoke on the condition of anonymity because of the subject’s sensitivity, said he believes the government should consider releasing declassified summaries of relevant opinions.

“I think it would help” quell the “furor” raised by the recent disclosures, he said. “In this current environment, you may have to lean forward a little more in declassifying stuff than you otherwise would. You might be able to prepare reasonable summaries that would be helpful to the American people.”

Back in 2006, Leonnig noted that the judges didn’t believe they had the authority to intervene to stop the dragnet. So what good does a ruling — even two as broad and stunning as the ones that used Pen Registers and Business Records to collect the contact records of all Americans — do to depict the role the Court is in?

The Administration keeps pointing to this narrowly authorized court as real court review. But that’s not what it is. And until we have a better sense of how that manifested in the past (and continues to — I’ll bet you a quarter that they’ve moved the Internet data mining to some area outside of court purview), we’re not going to understand how to provide real oversight to this dragnet.

We’d be far better off having the FISC provide its own history of these surveillance programs.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

21 replies
  1. phred says:

    Forgive me for not managing to muster an iota of sympathy for the well deserved humiliation of Judge Colleen Kollar-Kotelly.

    She KNEW that what was being done did not pass constitutional muster. As you point out in your post EW:

    “Back in 2006, Leonnig noted that the judges didn’t believe they had the authority to intervene to stop the dragnet.”

    Ummmm… so who the FUCK did Colleen imagine DID have the authority??? And HOW the FUCK was ANYONE EVER going to get a complaint before a JUDGE who WOULD do something about it?!?!?!

    It is OUTRAGEOUS for her to suggest that her conduct along with each and every member of that WORTHLESS court was anything other than ignoble failure. Not only should the FISC be outlawed, along with any other manifestation of a secret court in our barely-hanging-on democracy, but each and every judge that failed to act to stop chronic unconstitutional abuse by the executive branch should be DISBARRED.

  2. orionATL says:


    “… Ummmm… so who the FUCK did Colleen imagine DID have the authority??? And HOW the FUCK was ANYONE EVER going to get a complaint before a JUDGE who WOULD do something about it?!?!?! …”

    right on, phred.

    “… who the fuck did colleen imagine DID have the authority…”

    that’s the key question.

    only she and a very few fellow fisa judges even knew about the programs.

    career-preserving cowards, every damn one of them!!

  3. What Constitution? says:

    Poor FISA Court judge. On the one side, John Yoo wannabees who include, oh, the Attorney General, David Addington, Jack D. Ripper and, presumably, the President (both the numbskull and then the Law Professor); on the other side, the Constitution of the United States, the oath of office and the admonition that it is for the courts to “say what the law is.”

    That’s a version of “between a rock and a hard place”, to be sure — but in this case, the “rock” is the foundation of constitutional democracy and the “hard place” is, at best, “rule of men, not of laws.” Is that really such a difficult decision and, if it is for this judge, it’s time for new judges.

    This article plainly lays bare how programmatically and comprehensively unaccountable our government’s post-9/11 spying activities have become. It confirms that there’s no basis for engaging in the assumption parroted by those who have been running the program, to the effect that “it’s closely monitored and all our spies are patriots” — the people charged with monitoring it have been told (and have bought into) that it’s not their job to look at what’s actually happening or compare what’s actually happening under these authorizing statutes to what the Constitution allows.

    It certainly appears that DOJ’s OIG can be added to the list of persons and entities who can’t be considered alone reliable or effective enough to render a credible assessment of the constitutionality and even the fundamental efficacy of these programs, even if the fault isn’t a lack of trying but a lack of authority. And that the FISA Court needs some, shall we say, “guidance” in the field of “backbone”. Who will go on this morning’s Sunday shows to reassure us all, once again and without factual support (once again) that there’s nothing to see here?

    How to structure a top-to-bottom review of what is happening under the auspices of the War on Terra? Certainly more information is now available to the public — essentially courtesy of Mr. Snowden as amplified by the suddenly-expedient leakage of what is being deemed “supportive” of General MacArthur’s exhortation to win, baby, win (by, it’s worth noting, ignoring constitutional obligations that may messily interfere with that goal). Even the President “welcomes this discussion”, right? Is there a way to organize it that might result in a comprehensive and credible analysis that isn’t just funded by MIC?

  4. phred says:

    @orionATL: Thanks — did I manage to adequately convey that I am, uh, irate? ; ) It was all I could do to refrain from all caps ; )

    I am way beyond fed up with Article III shirking their constitutional responsibilities. They are an embarrassment to a society based on constitutional limitations of government power. And to pretend a secret court isn’t a fundamental usurpation of the power of the people of the United States is flat out insulting. I am spitting nails over all of this.

    A plain reading of the 4th amendment of the constitution is all that is required to understand that spying on Americans is illegal. Period. And no mealy mouthed bullshit from Washington officials in any branch changes that fact. People need to go to prison for this.

  5. Peasantparty says:

    @phred: ABSOLUTELY!

    They should all be disbarred and prevented from ever practicing any type of Law forever! There is no excuse whatsoever for this.

    No matter how many times she, or any of the other judges on that secret court circuit mouth reasons for their complete acceptance of these un-constitutional programs, they are in fact and truth void of anything resembling Law.

  6. Doug Kahn says:

    I do not believe the surveillance Court is in physical possession of its own records. How could they provide their own history, in that case? I’m not excusing them for this; but it’s one of the circumstances of FISA operations which I think make it unconstitutional. In fact, the lack of any remedy outside of Congressional action should make it unconstitutional on its face. Who can go to court to challenge court procedures, and to which court?

  7. Peasantparty says:


    I am not really IT knowledgeable. Could these NSA programs be responsible for independent hits such as a Trojan or Worm attack on a persons private computer?

    Also, for years I have always been keen to protect my privacy, virus, firewall, malware, keystroke, etc. through different free and paid for programs. Do these programs actually give my info away to the govt. instead of blocking assaults on my privacy?

  8. scribe says:

    Every time you talk, think or write about the judges of the FISA Court and, for that matter the FISA Court of Review (the appeals court that gets called in to make right on the rare occasions the government doesn’t get its way in the FISA court, remember how the judges get selected to be double-hatted into that court. Or, more to the point, by whom.

    The person selecting them for that court is The Chief Justice of the United States.

    That would have been Rehnquist for Judge Colleen, and Roberts for the judges currently double-hatted into those courts. Indeed, in its entire existence, every judge who sat on those courts was selected by a Republican Chief Justice.

    Does it leave you the least bit surpised that the vast majority of the judges on those courts are solid, regular, rock-ribbed Republicans who can be counted on to exercise “judicial modesty” and not upset the status quo? And that the rare Democrats are like-minded when it comes to national security?

    So why the shock and surprise when the judges are about as ballsy as newly castrated steers and flop about like jellyfish? They were chosen precisely because they had no spines.

    (Not for nothing, Roberts spent a lot of his time before becoming a judge in winnowing out candidates to be noinated for other judgeships.)

    Yet another example of “personnel determining policy”.

  9. joanneleon says:

    I’m having a hard time understanding the details of all of this. That WaPo article — I’d love to see someone rewrite that.

    That being said, I was stunned by most of it, the parts that I did understand.

    Another consideration. I’m pretty well informed on all of this, and though not a lawyer, I have a good sense of how it all fits together. And I’m having a hard time making clear sense of it. How the heck are most Americans going to understand all of this?

    Anyway, I think I better go back and read that IG report more closely. And then read the WaPo article again.

  10. harpie says:

    @scribe: I just learned about that in the past two weeks. Here is a 2007 report on Rehnquist’s choices.

    Chief Justice Rehnquist’s Appointments to the FISA Court: An Empirical Perspective [pdf]; Theodore W. Ruger, Professor, University of Pennsylvania Law School; 2007

    […] The FISA Court’s role in mediating privacy rights and national security interests in the war on terror is important and well-known. Like his jurisprudential influence, Chief Justice Rehnquist’s legacy in this area reverberates beyond his death, as many of the judges he installed on the FISA Court will rule on government surveillance requests for years to come. The FISA Court judges chosen by Rehnquist and his successor John Roberts may become even more influential in the next few years as Congress contemplates expanding the Court’s jurisdiction. […]

    This clear separation of functions [in the Constitution] is muddled by Congress’ occasional use of the unusual appointment device studied here. The unitary appointment authority that the Chief Justice holds for the FISA Court and other tribunals carries with it unusual latitude to shape outcomes by matching particular kinds of judges with particular tribunals. […]

  11. seedeevee says:

    Never Fear! According to the WP, Colleen Kollar-Kotelly is here to proclaim she is “voicing open frustration” and “participated in a process of adjudication, not ‘coordination’ with the executive branch” and “issued a strong warning to the government” when she caught them “overstepping its bounds”.

    What more could we ask for?

    A strong warning is all I ever need to change my behavior.

  12. thatvisionthing says:

    Re chief justice role, thinking of Rehnquist and the spangled glitter robe he designed for himself, and Roberts telling Congress he’d just be an umpire and then once he’s affirmed it’s like he keeps trying to steal home…


    MICHAEL GERSON: Well, obviously, I agree with Mark. That’s a little more than tinkering on the Voting Rights Act.

    This is a case where I think the court — the majority of the court actually made a pretty good case that this targeting of various states and localities was outdated, that these formulas should be updated. But that’s a policy case. There was very little constitutional case here.

    You know, the — if the chief justice wants to make those changes, he can run for the Senate.

    MARK SHIELDS: That’s right.

    MICHAEL GERSON: This was debated by the Congress. They had hearings on this topic, on this specific topic.

    Then they came to a decision that Barack Obama voted for and George W. Bush signed. You have to have a compelling constitutional reason to void something like a recent, almost unanimous decision of the Congress. He really — the chief justice didn’t produce that reason.

  13. joanneleon says:

    Marcy, what you’re getting at here… “I’ll bet you a quarter that they’ve moved the Internet data mining to some area outside of court purview” … are you thinking this is now under the Cyber Command? If so would that be part of the military, almost like a new kind of Special Ops forces, a virtual JSOC? Are all or most of JSOC ops authorized by a presidential directive and are those subject to Congressional oversight? My understanding was that they are not, as in, bin Laden raid would have been auth’d by a directive and no Congr. oversight involved, but I could easily be wrong or not remember correctly.

    So I guess I’m wondering if top secret or beyond top secret surveillance programs could be run straight out of the White House/Nat Sec Council, similar to the way I understand JSOC ops to be run.

  14. rsmatesic says:

    From the Leonnig, et al article in WaPo, we learn that CKK, whom Rehnquist appointed to FISC eleven years ago in 2002, and who served until 2009, has never made a single public comment describing her work on the intelligence court–until now. Thus, were it not for Snowden’s revelations, she wouldn’t be entering the fray to push back against what she contends is unfair media coverage of her and her colleagues’ work.

    Maybe I’ve missed something, but I don’t see a single reported decision in which any court has ever decided the constitutionality of FISC judges operating in secret. Nor one which says that either the Executive or Congress can, consistent with separation of powers, require the Judicial branch to participate in such a scheme. One would hope that if anyone should have understood the unconstitutional dangers posed by secret case law–as a consequence of which citizens have no notice of the judicial interpretations that could lead to conviction and life imprisonment–it would have been a judge. As this article demonstrates, one’s hopes would be badly misplaced.

    CKK blanches at the alleged collaboration–in her terminology, “co-ordination”–between FISC and the Executive branch, but if Leonnig et al are to be believed, her defense is self-impeaching:

    Kollar-Kotelly, who was the court’s chief judge from 2002 to 2006, said she could not comment further on the matter because “the underlying subjects” in the report generally remain classified by the executive branch.

    In one sense, CKK is correct. Assigning to Executive branch discretion one’s power as an Art III judge to disclose information about the scope of one’s work is not collaboration, nor is it co-ordination. It is surrender.

    One final point. The article seems to go out of its way to throw CKK a bone, observing that she could be a “stern taskmaster when she thought the NSA was overstepping its bounds”, and providing the example of her temporarily shutting down NSA when it appeared to not walling off information gained in warrantless surveillance that might later be used to obtain court warrants. Although the article doesn’t suggest it, there are any number of motives that could have led CKK to push back, none of which have anything to do with protecting the constitutional rights of citizens. Preserving some measure of judicial authority, or saving the NSA from itself, come readily to mind.

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