Most of those targets never learn that their privacy has been invaded, but some are sent to prison on the basis of evidence derived from the surveillance. And unlike in ordinary criminal wiretap cases, defendants are not permitted to see what investigators told the court about them to obtain permission to eavesdrop on their calls and emails.
Civil libertarians for years have called the surveillance court a rubber stamp because it only rarely rejects wiretap applications. Out of 1,080 requests by the government in 2018, for example, government records showed that the court fully denied only one.
Defenders of the system have argued that the low rejection rate stems in part from how well the Justice Department self-polices and avoids presenting the court with requests that fall short of the legal standard. They have also stressed that officials obey a heightened duty to be candid and provide any mitigating evidence that might undercut their request.
The government has fought hard to keep outsiders from seeing what goes into its FISA applications. In 2014, a federal judge in Illinois ordered the government to show a defense lawyer classified materials about the national security surveillance of his client, which would have been the first time a defense lawyer had been given such materials since Congress enacted FISA in 1978.
But the Obama administration appealed, and an appeals court overturned the order, agreeing that letting the defense counsel see the application would create an intolerable risk of disclosing sensitive government secrets.