Reshared post from +Yonatan Zunger
This article gets straight to the point of why a secret court like FISA, no matter how well-run, can never be an effective check on the intelligence community. Mark Rumold of the EFF says it best:
“This opinion illustrates that the way the court is structured now it cannot serve as an effective check on the NSA because it’s wholly dependent on the representations that the NSA makes to it. It has no ability to investigate. And it’s clear that the NSA representations have not been entirely candid to the court.”
Because the government appears before this court ex parte, with no opposing counsel in the room, there is nobody with the motivation and ability to determine whether the intelligence agencies are being at all truthful with the court. The court itself can't do this; it's not an investigative agency. But private parties can't do this either (despite some suggestions I've seen flying about the Internet); to investigate requires legal powers to do so, such as subpoena, and the standing to present evidence of wrongdoing before a court and demand redress.
This is one of the many reasons why no ex parte court system, no matter what its intentions, can ever act as a meaningful check against the operation of an organization. If there is to be any meaningful restraint on these organizations, even the most basic rule of law, it has to come in the form of review by an adversarial party, judged by a neutral court.
Secret Court Rebuked N.S.A. on Surveillance
A 2011 ruling held that the N.S.A. had violated the Constitution for several years by gathering tens of thousands of domestic communications unrelated to terrorism.