Utah judge speaks about top secret surveillance court

Posted at 5:32 PM, Sep 26, 2013

SALT LAKE CITY -- In rare comments, a sitting federal judge who has served on a top secret surveillance court, spoke about the experience and defended the government's activities.

U.S. District Court Judge Dee Benson served on the Foreign Intelligence Surveillance Court (FISA) from 2004 to 2011. Recounting his experience to a packed room at the University of Utah's Hinckley Institute of Politics on Thursday, he said he would commute from Utah to Washington, D.C., to review 70 to 80 warrant applications from the government each week.

"There is a high percentage of the applications that get approved. Something like 99 percent. So you might think it's a rubber stamp," he said, adding that the number is inflated because the government withdraws many of its warrant applications.

"On average, about once a week, I would turn down an application. Sometimes two or three," he said.

Benson gave a history of the FISA Court and how it evolved after the 9/11 terror attacks under the PATRIOT Act. Addressing the leaks by Edward Snowden, Benson defended what was being gathered, likening "metadata" to what's written outside an envelope and "content" being the letter inside.

"It's all non-content information," he said of the metadata. "If you get into content, then you've got a problem."

But some, like local Internet service provider Pete Ashdown, were skeptical. Ashdown was the recipient of a FISA warrant, which he was compelled to comply with.

"Congratulations!" Benson quipped.

Ashdown quizzed the judge about why the courts needed to be secret. Benson said in many of the investigations, secrecy is required.

"You wouldn't call a drug dealer and tell him there's a hearing scheduled," Benson said.

Speaking to FOX 13 after the judge's remarks, Ashdown said there still needed to be more scrutiny of government activities. He also disputed the judge's claims about metadata.

"On the Internet, it's extremely difficult to separate metadata from content. You have to capture the whole thing, and once you capture the whole thing, if they say, 'We're just going to look at the metadata,' they have the rest of it accessible to them," Ashdown said.

Benson told the audience that there needed to be some trust in the government, but said he welcomed the recent debate over privacy and security.

"You boil it down and yeah, I think the NSA out here in Lehi is going to have huge volumes of data from phone companies and other places," he said, referring to the NSA's massive Utah Data Center. "But I think the system isn't a bad one, and I think the hue and cry should be investigated and I think it's good to call for a national discussion on this."