The secret court that decides the rest of us have no secrets

Talking with some friends recently, I realized that even what’s known about the secret FISA court isn’t well-known, so I decided to write a brief intro.

FISA means the Foreign Intelligence Security Act. The FISA court (also known as the Foreign Intelligence Security Court or FISC) is set up “to hear applications for and grant orders approving electronic surveillance anywhere within the United States …”

There’s just one FISA Court, made up of 11 federal judges. They are appointed by the Chief Justice of the U.S. Supreme Court. Each of the judges serve on the FISA court for a term of seven years, and may not be reappointed for a second term.

The FISA court was originally set up in 1978. Before 9/11, writes Nina Totenberg of NPR:

“If the government wanted to listen in on conversations or other communications in the U.S., it had to get a warrant from the foreign intelligence court based on individualized suspicion and probable cause to believe that national security was being compromised.”

After 9/11, the Bush administration started wiretapping without warrants. They got caught, and then, explains Totenberg:

“After news reports blew the lid off the administration’s dodge, Bush submitted to Congress proposed changes in the law, which were adopted in 2008. Those changes allowed the government to conduct the so-called PRISM program and monitor any and all conversations that take place between the U.S. and someone in a foreign country.”

Today’s applications for electronic surveillance are different from normal search warrants. Besides PRISM, there’s also collection of “metadata” from all U.S. telecom companies on all phone calls and email.

The FISA court hearings are secret. Its rulings are classified. The targets of surveillance have no notice, either before or after the ruling. Since 2008, the court has approved surveillance systems, not just individual warrants.

Each year the Attorney General has to report on the total number of applications for electronic surveillance and the total number approved, denied or modified. Those reports provide the only official information about the court. 

Writing in The Daily Beast, Jennifer Granick and Christopher Sprigman summarize what actually happens now:

“Like a modern-day Star Chamber, the FISC operates “ex parte”—that is, the applications and arguments are one-sided, and only the government appears before the court. There is no one before the court to speak for the public’s interest in the privacy of its communications. And in a fight where only one side is allowed to show up, the government’s view almost always prevails. Since 2008 the administration has submitted over 8,000 surveillance requests to the FISC. Only two have been denied. The FISC has denied not a single surveillance request in the past three years. By any measure, the court is simply a rubber stamp for the executive branch.”

Glenn Greenwald notes that the rubber stamp nature of the court preceded 9/11:

“In its total 34 year history – from 1978 through 2012 – the Fisa court has rejected a grand total of 11 government applications, while approving more than 20,000.”

Since Edward Snowden’s disclosure of secret NSA documents, more information about the FISA court has come to light. Based on information about the gathering of U.S. phone and electronic communication records, the Electronic Privacy Information Center filed a petition asking the U.S. Supreme Court to stop this particular aspect of NSA spying. SCOTUSblog describes the secrecy of FISA proceedings in a post about the EPIC lawsuit:

“Attached to the petition is a copy of an order dated April 25 and signed by Roger Vinson, a U.S. District Court Judge who sits in Florida but who issued this order in his temporary capacity as a judge of the FIS Court.   Because that order was issued in secret, the petition noted, it is not officially on record anywhere.  All judges who sit temporarily on that court and pass upon government intelligence surveillance requests are named by Chief Justice John G. Roberts, Jr.”

What that order mandated, EPIC argues, is the “production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”  And, because of the structure of the federal law setting up the FIS Court and directing its operations, the petition said, “no other court may grant the relief that EPIC seeks.”

One more quotation, hopefully still relevant to today’s FISA and NSA proceedings.

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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