Second, there are major deficiencies in the way the FISA court now operates. When the judges on the FISA court review the government’s submissions, there is no one on the other side to advocate against the arguments of the government. In this respect, the FISA process was modeled on the usual search warrant process, in which a police officer provides information to a judge in the hope that the judge will issue a search warrant. But in the usual search warrant situation, there is often an opportunity for subsequent adversarial litigation over the legality of the search. This might happen in a civil action brought by the target of the search or in a defendant’s motion to suppress the evidence in a subsequent criminal prosecution. In practical effect, there is no opportunity for adversarial review in the FISA context.

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