Scholarship@WashULaw

Document Type

Article

Language

English (en)

Publication Date

2014

Publication Title

Stanford Law Review Online

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

Foreign Intelligence Surveillance Court, FISC, FISA, Surveillance

Publication Citation

Conor Clarke, Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? Ex Parte Proceedings and the FISC Win Rate, 66 Stan. L. Rev. Online 125 (2014)

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