On Tuesday a former federal judge who served on the secret court that oversees National Security Agency spying said that the 11-judge panel is flawed because blanket approval of entire surveillance systems is not a judicial function, The Associated Press reports.
On Monday we reported that the 2008 amendment to the Foreign Intelligence Surveillance Act (FISA) radically expanded the government's power to amass vast collections of data on Americans by creating a secret body of law with almost no public scrutiny.
Previously, the court approved surveillance warrants and not entire surveillance systems.
Robertson told a federal oversight board that Congress' 2008 reform meant that"the court is now approving programmatic surveillance," offering that "I don't think that is a judicial function."
Robertson also questioned whether the NSA's global surveillance programs court should be given its legal basis by a court that"has turned into something like an administrative agency," adding that the secret court is flawed because only the government's side is heard.
"Anyone who has been a judge will tell you a judge needs to hear both sides of a case," James Robertson, a who served on the Foreign Intelligence Surveillance Act (FISA) court from 2002 and 2005 before quitting "in protest because the Bush administration was bypassing the court on warrantless wiretaps."
The 2008 amendment essentially codified that practice, and Robertson contends that the system has failed to add the proper oversight mechanisms on the government's secret court proceedings.
"This process needs an adversary," he said.
AP notes: "Several other attorneys on the panel cautioned that such a change could only be authorized by Congress."
The oversight hearing was ordered by President Barack Obama to scrutinize government spying.
AP notes that Robertson ruled against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at America's Guantanamo Bay detention facility the right to challenge their detentions.
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