The Conversation

Sources: Secret Court Expands NSA Surveillance Powers

Officials say that more than a dozen classified rulings have created a secret body of law that gives the NSA the power to gather massive information collections on Americans.  The data collection is not just restricted to terrorism suspects but "people possibly involved in nuclear proliferation, espionage and cyberattacks."

According to officials who are familiar with these classified rulings, the court has expanded it's role while assessing "broad constitutional questions" and establishing judicial precedents without any public scrutiny.  Some rulings are over 100 pages long. 

The role of the FISA court has changed over the years, originally approving case by case wiretaps.  In 2007, with greater judicial oversight of intelligence operations and other legislation, the FISA court "has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said."

In particular the court has expanded the NSA's surveillance authority under a legal principle called the "special needs" doctrine which allows, in cases of terrorism, "an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures." This doctrine was originally established by the Supreme Court in 1989 when it found that a minimal invasion of privacy is acceptable in order for the government to combat an "overriding" public danger. FISA judges have used this more broadly to allow collecting communications data to track terrorism suspects that "does not run afoul of the Fourth Amendment."

William C. Banks, a national security law expert said "It seems like a legal stretch.  It’s another way of tilting the scales toward the government in its access to all this data."  

In one instance, intelligence officials were allowed to access an email attachment that was sent within in the United States  because there was suspicion that it contained the schematics of diagram that could have been connected to Iran's nuclear program.

But this example of domestic surveillance is permissible because a 2008 law expanded the definition of "foreign intelligence" to include "weapons of mass destruction."  And other secret findings have "eased access to data on espionage, cyberattacks and other possible threats connected to foreign intelligence."

"The definition of ‘foreign intelligence’ is very broad," another former intelligence official said in an interview. "An espionage target, a nuclear proliferation target, that all falls within FISA, and the court has signed off on that."

In an interview with the New York Times, "current and former national security officials, discussed the court’s rulings and the general trends they have established on the condition of anonymity because they are classified. Judges on the FISA court refused to comment on the scope and volume of their decisions."

The FISA Court only hears one side of the cases that come before it (the government's side) and findings are almost never made public. There is a "Court of Review" in case of appeal, but that has only happened "a handful of times in the court’s history, and no case has ever been taken to the Supreme Court."  

It may not even be possible for the communications companies who are turning over information to the government have a right to appear before the FISA court. 

The FISA court was created by Congress in 1978 in order to serve as a check on wiretap abuses by the government.  There are 11 judges who serve in 7 year shifts, ten were nominated by Chief Justice John Roberts.  Last year the courts heard nearly 1800 cases and according to sources no requests were denied.

FISA judges have had to "intervene repeatedly" when "Internet and phone companies...have raised concerns that the government is overreaching in its demands for records or when the government itself reports that it has inadvertently collected more data than was authorized, the officials said."

The court has ordered the the NSA to destroy communications records when information has been collected improperly.  According to the New York Times' sources, 

The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.

In 2008, Congress passed new procedures in the FISA Amendment acts where "the collection of metadata must be considered "relevant" to a terrorism investigation or other intelligence activities."  The courts hae indicated that while individual pieces of data may not appear relevant, "the total picture that the bits of data create may in fact be relevant."

When pressed about informing the public about these issues, there has been push back. Reggie Walton, the FISA court's presiding judge, said there could be a potential benefit but there are "serious obstacles."  General Alexander, the NSA director responded in a public Senate hearing in June  "I don’t want to jeopardize the security of Americans by making a mistake in saying, 'Yes, we’re going to do all that.' "  Alexander pledged to try and make decisions more public. 


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