Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? Ex Parte Proceedings and the FISC Win Rate

9 Pages Posted: 20 Oct 2014

See all articles by Conor Clarke

Conor Clarke

Yale University, Law School

Date Written: February 28, 2014

Abstract

One of the most common criticisms of the Foreign Intelligence Surveillance Court is that the court has approved more than 99% of the government’s 33,000 ex parte surveillance requests, a fact cited as extraordinary evidence that the court is nothing more than a rubber stamp. This Essay disputes that popular criticism in two ways. First, I argue that there are good reasons to expect ex parte processes to produce lopsided results, since the government selects applications based in part on the level of oversight the court applies – just as, in most other legal contexts, ‘the decision to litigate’ depends partly on the probability of success. Second, I assemble supporting data from a variety of other ex parte contexts, all of which display similarly lopsided win rates. I conclude by discussing the current debate over FISC reform – a debate that, in my view, should consider the general tradeoffs of ex parte proceedings, rather than the supposedly unique evils of FISC.

Keywords: FISC, FISA, Surveillance

JEL Classification: K00, K40, K41

Suggested Citation

Clarke, Conor, Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? Ex Parte Proceedings and the FISC Win Rate (February 28, 2014). Stanford Law Review, Vol. 66, Online 125, 2014, Available at SSRN: https://ssrn.com/abstract=2511653

Conor Clarke (Contact Author)

Yale University, Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
161
Abstract Views
685
rank
225,248
PlumX Metrics