My friend Rachel Kranz alerted me to a smart but very depressing Washington Post quiz in which respondents are invited to compare the United Foreign Intelligence Surveillance Court (a.k.a. the FISA Court) with the court in Kafka’s The Trial. Nightmarish though Kafka’s court is, sometimes FISA is even worse.
According to Wikipedia, the FISA Court oversees “requests for surveillance warrants against suspected foreign intelligence agents inside the United States by federal law enforcement agencies.” The agencies that make the most requests are the National Security Agency (the NSA, sometimes known as No Such Agency) and the FBI. According to the Wikipedia article, the court’s powers “have evolved and expanded to the point that it has been called “almost a parallel Supreme Court.” Sen. Ron Wyden has described the FISC warrant process as “the most one-sided legal process in the United States” and has observed, “I don’t know of any other legal system or court that really doesn’t highlight anything except one point of view.”
It’s clear why The Washington Post thought of Kafka’s Trial. In that novel, K is accused of something but he never learns what and goes through months of agonizing uncertainty. In the end, he finds it almost a relief when he is killed by two officials/thugs who show up and take him away.
If you don’t want me to spoil the quiz, take it yourself before you read on. Here, according to the quiz’s creators Alvaro Bedoya and Ben Sobel, are some instances where the FISA court is worse than Kafka’s court:
–Recipients of orders from the FISA court are typically prohibited from speaking about them in public. These orders are so secret that some recipients report actually having to return the copy of the order they received after reading it.
— Most proceedings before the FISA court are “ex parte,” meaning that judges hear from only one party, e.g. the FBI.
Bedoya and Sobel find some instances where the courts have things in common:
–Lawyers [in both courts] are barred from reading secret government filings about their clients. Lawyers who have practiced before the FISA court do report not being able to read all of the classified filings against their clients. Lawyers in The Trial are also frequently unable to read the charges filed against their clients.
— Lawyers have to respond to secret government filings – without reading them.
The quiz also cites four quotations and challenges us to figure out which are from The Trial and which from people commenting on FISA. When I took the quiz, my only wrong answers occurred here:
–“…proceedings are generally kept secret not only from the public but also from the accused.” – Kafka
–“The public cannot argue that the… opinion should be released until it has seen the opinion, and it cannot see the opinion until it has been released.” –Sen. Richard Blumenthal, D-Conn
–“The targets of their proceedings are ordinarily not represented by counsel. Indeed it seems likely that targets are usually unaware of the existence of the proceedings…” – Judge Robert D. Sack, Second Circuit
–“The courts don’t make their final conclusions public, not even the judges are allowed to know about them, so that all we know about these earlier cases are just legends.” – Kafka
In one respect, FISA is better than Kafka’s Court, but only in the sense that 0.03 is better than 0.00. An expert in The Trial admits that “I never saw a single actual acquittal.” Bedoya and Sobel, meanwhile, quote a Wall Street Journal report that, “from 1979 to 2012, the FISC rejected 11 of the more than 33,900 government surveillance applications, a rejection rate of 0.03%.”
Sometimes when we throw around the descriptor “Kafkaesque,” we are being hyperbolic. Not in this case.