"...we should worry about a court that, lacking a real adversarial process to inform it, failed while taking its best shot at explaining its position to the public to address the most basic, widely-known counter-argument to its position. The opinion does not even mention last year's unanimous US supreme court decision on the fourth amendment and GPS tracking, a decision in which all three opinions include strong language that may render the NSA's phone records collection program unconstitutional. No court that had been briefed by both sides would have ignored the grave constitutional issues raised by the three opinions of Justices Scalia, Sotomayor, and Alito in United States v Jones. And no opinion that fails to consider these should calm anyone down." Yochai Benkler (9/22/2013)
The stark distinction between the secretive FISA court and the public court system was recognized by Judge Leon when he observed that, "... no court has ever recognized a special need sufficient to justify continuous, daily searches of virtually every American citizen without any particularized suspicion. In effect, the government urges me to be the first non-FISC judge to sanction such a dragnet." It is notable here that Judge Leon felt that it was significant that he was the first non-FISC judge to consider the matter, a tacit recognition that the judgments of the FISC cannot be regarded as true constitutional scrutiny.
The Supreme Court Chief Justice appoints judges who are on the FISA Court.
"It is rare for FISA warrant requests to be turned down by the
court. During the 25 years from 1979 to 2004, 18,742 warrants were
granted, while just four were rejected." Wikipedia.
When the law is, itself, secret, can it be valid ?