The American Bear

Sunshine/Lollipops

Electronic Frontier Foundation Victory Results in Release of Secret Court Opinion Finding NSA Surveillance Unconstitutional

Update: In response to EFF’s FOIA lawsuit, the government has released the 2011 FISA court opinion ruling some NSA surveillance unconstitutional.

For over a year, EFF has been fighting the government in federal court to force the public release of an 86-page opinion of the secret Foreign Intelligence Surveillance Court (FISC). Issued in October 2011, the secret court’s opinion found that surveillance conducted by the NSA under the FISA Amendments Act was unconstitutional and violated “the spirit of” federal law.

Today, EFF can declare victory: a federal court ordered the government to release records in our litigation, the government has indicated it intends to release the opinion today, and ODNI has called a 3:00 ET press conference to discuss “issues” with FISA Amendments Act surveillance, which we assume will include a discussion of the opinion.

It remains to be seen how much of the opinion the government will actually make available to the public. President Obama has repeatedly said he welcomes a debate on the NSA’s surveillance: disclosing this opinion—and releasing enough of it so that citizens and advocates can intelligently debate the constitutional violation that occurred—is a critical step in ensuring that an informed debate takes place.

Here are examples of documents previously released by the administration in response to our Freedom of Information Act request. Anything even resembling those “releases” would be utterly unacceptable today. But we’ve come a long way since then—it took filing a lawsuit; litigating (and winning) in the FISC itself; the unprecedented public release of information about NSA surveillance activities; and our continuing efforts to push the government in the district court for release of the opinion.

Release of the opinion today is just one step in advancing a public debate on the scope and legality of the NSA’s domestic surveillance programs. EFF will keep fighting until the NSA’s domestic surveillance program is reined in, federal surveillance laws are amended to prevent these kinds of abuse from happening in the future, and government officials are held accountable for their actions.

White House stays silent on renewal of NSA data collection order | Spencer Ackerman

The Obama administration is refusing to say whether it will seek to renew a court order that permits the National Security Agency’s bulk collection of phone records on millions of Verizon customers when it expires at the end of this week.

Officials declined to discuss what action they intend to take about the order at the center of the current surveillance scandal, which formally expires at 5pm Friday.

The looming expiration of the order, issued by the secretive Fisa court, provides an early test of Barack Obama’s claim to welcome debate over “how to strike this balance” between liberty and security. Beyond the question of the phone records collection, the court order authorizing it is a state secret.

On Thursday, the administration would not answer a question first posed by the Guardian six days ago about its intentions to continue, modify or discontinue the Verizon bulk-collection order. The White House referred queries to the Justice Department. “We have no announcement at this time,” said Justice Department spokesman Brian Fallon. The NSA and office of the Director of National Intelligence did not respond to questions.

[…] Judge Roger Vinson, until recently a member of the court that reviews the government’s surveillance requests, approved the order for “all call data records or telephony metadata” from customers of Verizon Business Services on 25 April. The court has reauthorized the bulk phone records collection, in secret, every 90 days for about seven years.

At least two other major telecoms, AT&T and Sprint, reportedly receive similar orders. The dates of their expiration are unclear. […]

A spokesman for the Fisa court, Sheldon Snook, said the court “respectfully declines to comment”.

In other words, yes, the court orders will be renewed.

[T]he Combined IG Report on Cheney’s illegal program reveals that before each Presidential Authorization, the CIA would put together a ‘scary memo’ that the Director of CIA would then certify presented a sufficiently grave threat to justify reauthorizing the illegal wiretap program. … It’s bad enough that a court has gutted the Fourth Amendment in secret. But it did so because it was presented with unchallenged intelligence derived from a now-discredited torture program. Marcy Wheeler, The Torture That Underlies FISA Court’s “Special Needs” Decisions

A Patriot Act History Lesson: How Prescient Warnings Were Mocked | Conor Friedersdorf

During the winter of 2006, the U.S. Senate was debating the re-authorization of the PATRIOT Act. The legislation would ultimately pass by a wide margin, and George W. Bush signed it into law. But before that could happen, civil libertarians led by then Senator Russ Feingold tried to amend the 2001 law. They warned that its overly broad language would permit government to pry into the privacy of innocent Americans, and warned about the likelihood of executive branch “fishing expeditions.”

Dismissive Senate colleagues scoffed at their concerns.

An exchange between Feingold and then Senator Jon Kyl of Arizona is illustrative of the way that civil libertarians warned of coming abuses, only to be dismissed as hysterics needlessly wasting Senate time.

The scene takes place on the Senate floor on February 16, 2006.

Feingold was trying to amend the PATRIOT Act, arguing that Section 215, a part of the law core to the NSA controversy, gives the government “extremely broad powers to secretly obtain people’s business records.”

Said Feingold:

The Senate bill would have required that the government prove to a judge that the records it sought had some link to suspected terrorists or spies or their activities. The conference report does not include this requirement. Now, the conference report does contain some improvements to Section 215, at least around the edges. It contains minimization requirements, meaning that the executive branch has to set rules for whether and how to retain and share information about U.S. citizens and permanent residents obtained from the records. And it requires clearance from a senior FBI official before the government can seek to obtain particularly sensitive records like library, gun and medical records.

But the core issue with Section 215 is the standard for obtaining these records in the first place. Neither the minimization procedures nor the high level signoff changes the fact that the government can still obtain sensitive business records of innocent, law-abiding Americans. The standard in the conference report - “relevance” — will still allow government fishing expeditions. That is unacceptable.

He went on:

Next, let me turn to judicial review of these Section 215 orders. After all, if we’re going to give the government such intrusive powers, we should at least people go to a judge to challenge the order. The conference report does provide for this judicial review. But it would require that the judicial review be conducted in secret, and that government submissions not be shared with the challenger under any circumstances, without regard for whether there are national security concerns in any particular case. This would make it very difficult for a challenger to get meaningful judicial review that comports with due process.

Today we know that Section 215 has been invoked by the government to obtain call data on all Verizon customers, and has very likely been used to collect data on tens or hundreds of millions of Americans who are customers of all the major telecom carriers. Feingold was exactly correct: the sensitive business records of innocent, law-abiding Americans were seized because the minimization standard, “relevance,” turns out not to minimize affected Americans at all. Additionally, it has so far proved not just very difficult, but impossible to get meaningful judicial review.

But back in 2006, when Feingold remained a lonely voice in opposition to PATRIOT Act re-authorization, look at how Senator Kyl, speaking on the same day, derisively dismissed his concerns.

Said Kyl, opposing Feingold’s suggested amendments:

“There is no basis for delaying the PATRIOT Act.”

… “What can be gained from this? Nothing at all except that we waste more time thus making it more likely that we will not have time to do other business of the Senate, especially as it gets toward adjournment later on in the year.”

… “I often wonder what Osama bin Laden is thinking. I suspect he is not getting live coverage, but he is probably getting reports somehow or other, and he must be shaking his head: I thought I was pretty clear, I am really making threats against these guys, and they are playing around. They are not taking my threats seriously.”

… “I wanted to examine a couple of amendments our colleague from Wisconsin would have offered to illustrate it is not something we should be wasting our time on… I thought I would take two of the amendments—we are not going to be debating the amendments, but this is the kind of thing raised as an objection to the PATRIOT Act—the kind of amendments that would be offered. It shows how unnecessary this approach is.”

… “This amendment would strip away the protections for classified information about suspected terrorists and terrorist organizations… The amendment not only risks revealing our level of knowledge of our data collection methods to those who would do us harm, but it also threatens to undermine our relations with allies who supply us with a lot of information in this war or terror…this particular amendment would allow classified information to be compromised during the challenge to a nondisclosure order for national security letters or a FISA business records order… It serves no substantial interest but, as I said, can be very damaging to our national security.”

So thus far, Kyl has literally asserted not just that Feingold’s amendments are, on balance, wrongheaded, but that they serve no purpose or interest at all — and has suggested that the very effort to amend the PATRIOT Act isn’t just purposeless, but also a sign that Feingold doesn’t take Bin Laden seriously, which is to say, the cheapest rhetorical trick in the Senate playbook.

Kyl goes on to state:

“This amendment would do serious harm to U.S. national security. And to what end? What powerful privacy interest or civil rights interest dictates a third party asked to produce business records in its possession must be allowed to disclose the existence of the investigation or must be given access to other classified information in order to plead that matter before the judge?

… The only other amendment I want to discuss is amendment No. 2892, blocking these section 215 orders even where relevance is shown. This amendment is highly problematic because it would bar antiterrorism investigators from obtaining some third party business records even where they can persuade a court that those records are relevant to a legitimate antiterrorism investigation. We all know the term “relevance.” It is a term that every court uses. It is the term for these kinds of orders that are used in every other situation in the country. Yet the author of the amendment argues that relevance is too low a standard for allowing investigators to subpoena records.

Consider the context. The relevance standard is exactly the standard employed for the issuance of discovery orders in civil litigation, grand jury subpoenas in a criminal investigation, and for each and every one of the 335 different administrative subpoenas currently authorized by the United States Code.

So Feingold says that the “relevance” standard, in the context of secret national security investigations, is extremely broad, and that his colleagues should recognize its implications for the privacy of innocent Americans — and Kyl retorts that “relevance” is the same standard used all the time, that we’re all familiar with it, and that it’s “exactly” the standard used in criminal investigations.

There’s no other way to put it: Feingold has been proved right, and Kyl wrong.

As the Wall Street Journal put it Monday, under the headline “Secret Court’s Redefinition of ‘Relevant’ Empowered Vast NSA Data-Gathering”:

The National Security Agency’s ability to gather phone data on millions of Americans hinges on the secret redefinition of the word “relevant.”

This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

The ‘relevant’ language was added to the Patriot Act when it came up for reauthorization; it was signed by President Bush in 2006.

The article goes on:

“Relevant” has long been a broad standard, but the way the court is interpreting it, to mean, in effect, “everything,” is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department’s primary authority on federal criminal surveillance law.

“I think it’s a stretch” of previous federal legal interpretations, says Mr. Eckenwiler, who hasn’t seen the secret ruling. If a federal attorney “served a grand-jury subpoena for such a broad class of records in a criminal investigation, he or she would be laughed out of court.”

This is exactly how War on Terror hawks defeat civil libertarians: warnings that overly broad language will be twisted by the national security state are dismissed as paranoid time-wasting — why, relevance is the same standard used in all sorts of contexts, nothing worrisome to see here! Later, when the overly broad language is exploited in exactly the way civil libertarians anticipated, the same coalition that insisted such measures wouldn’t be permitted by the law suddenly claim that they’re perfectly legitimate legal interpretations of duly passed and signed legislation.

Former judge admits flaws in secret court | AP

WASHINGTON (AP) — A former federal judge who served on a secret court overseeing the National Security Agency’s secret surveillance programs said Tuesday the panel is independent but flawed because only the government’s side is represented effectively in its deliberations.

“Anyone who has been a judge will tell you a judge needs to hear both sides of a case,” said James Robertson, a former federal district judge based in Washington who served on the secret Foreign Intelligence Surveillance Act court for three years between 2002 and 2005. Robertson spoke during a Tuesday hearing of a federal oversight board directed by President Barack Obama to scrutinize government spying.

Robertson questioned whether the secret FISA court should provide overall legal approval for the surveillance programs, saying the court “has turned into something like an administrative agency.” He is one of several judges with FISA experience who have spoken out recently to affirm the court’s independence. But Robertson is the first to publicly air concerns about how the court grapples with the government’s vast secret data collection programs.

Much of the NSA’s surveillance is overseen by the FISA court, which meets in secret and renders rulings that are classified. Some of these rulings also likely been disclosed by Edward Snowden, the NSA systems analyst who leaked significant information about the spying program.

After Snowden began exposing the NSA’s operations in June, Obama instructed the U.S. Privacy and Civil Liberties Board to lead a “national conversation” about the secret programs. The board, which took testimony Tuesday on the secret surveillance programs, has been given several secret briefings by national security officials and plans a comprehensive inquiry and a public report on the matter.

Robertson said he asked to join the FISA court “to see what it was up to,” had previously played a central role in national security law. He was the judge who ruled against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld by the Supreme Court in 2006.

Robertson quit the FISA court in 2005, days after the New York Times revealed widespread NSA warrantless wiretapping under President George W. Bush’s administration. Robertson had previously refused to explain his decision. But during a break in the hearing Tuesday he confirmed for the first time to the AP that he had “resigned in protest because the Bush administration was bypassing the court on warrantless wiretaps.”

Robertson said that FISA court judges have been scrupulous in pushing back at times against the government, repeatedly sending back flawed warrants. He also said he came away from his FISA experience “deeply impressed by the careful, scrupulous and fastidious work by the Justice Department” in obtaining secret surveillance warrants.

But he warned that Congress’ 2008 reform of the FISA system expanded the government’s authority by forcing the court to approve entire surveillance systems, not just surveillance warrants, as it previously handled. Under the FISA changes, “the court is now approving programmatic surveillance. I don’t think that is a judicial function,” he said. [++]

It is an irony of history that the 1978 law establishing the FISA court was drafted in response to the exposure of illegal CIA spying and assassination plots in the mid-1970s. The claim was that judicial oversight would prevent any future ‘excesses.’ The actual role of the FISA court has been the direct opposite: the court has simply enlisted the judiciary in the buildup of a police-state apparatus in America, just as ‘oversight’ by congressional leaders has made the legislative branch a partner with the executive in trampling on democratic rights. Patrick Martin

Secret laws, secret government | Patrick Martin

What is described in the Times article … is extraordinary. Under FISA, the targets of government spying—that is, the population of the United States and the entire world—confront a Star Chamber proceeding: a secret court, using secret interpretations of the law, hearing secret evidence from the government, and issuing secret rulings. If the target of such unconstitutional spying becomes aware of the surveillance, the government may issue a gag order forbidding the victim to reveal the ongoing spying to anyone else.

In the FISA court’s proceedings, only one side, the government, is represented. The proposed targets of spying are neither informed of the requests nor permitted to oppose them. Such methods amount to shredding the Bill of Rights, particularly the Fourth Amendment, which requires a warrant for searches, and the Sixth Amendment, which provides defendants the right to a “speedy and public trial,” to be represented by counsel and to be able to confront the witnesses against them.

For three decades, the FISA court was actually housed in a secure facility inside the headquarters of the US Department of Justice, making it physically, as well as practically, part of the executive branch. Six years ago, after the court’s existence became more widely publicized, its office was moved to a federal courthouse in Washington DC. But it still remains effectively an arm of the intelligence apparatus, with 11 judges, all named by the Chief Justice of the Supreme Court, John Roberts, serving on-call on a rotating basis to ratify whatever spying the NSA or other agencies wish to carry out.

It is an irony of history that the 1978 law establishing the FISA court was drafted in response to the exposure of illegal CIA spying and assassination plots in the mid-1970s. The claim was that judicial oversight would prevent any future “excesses.” The actual role of the FISA court has been the direct opposite: the court has simply enlisted the judiciary in the buildup of a police-state apparatus in America, just as “oversight” by congressional leaders has made the legislative branch a partner with the executive in trampling on democratic rights.

There is no institutional reform based on the principle of “checks and balances” that can reverse the decay of American democracy. This process is an inexorable byproduct of two interrelated processes: the deepening social polarization in America between a super-rich aristocracy of wealth and the vast majority of the population struggling to survive; and the growth of US militarism, with the American military-intelligence complex becoming the major repressive force around the world. It is impossible for the financial oligarchy either to defend their wealth and power at home or maintain their domination of the world while observing democratic and constitutional norms.

There is no significant opposition to police-state methods within any section of the capitalist ruling elite. The revelations in the Times —and a similar exposé in the Washington Post Sunday on US government tapping of undersea fiber optic cables—sparked no protests in either the Democratic or the Republican parties. None of the Sunday interview programs on the main television networks made any reference to these reports.

In Secret, Court Vastly Broadens Powers of N.S.A. | NYTimes.com

“It is transparent, that’s why we set up the FISA court. The whole point of my concern before I was president — because some people say well, Obama was this raving liberal before, now he’s Dick Cheney. Dick Cheney sometimes says, ‘Yes, you know, he took it all, lock stock and barrel.’ My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism but rather are we setting up a system of checks and balances?”Barack Obama (to Charlie Rose 6/17/2013)

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say [let’s be honest: anyone].

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it 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.

Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects [see above edit]. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

While President Obama and his intelligence advisers have spoken of the surveillance programs leaked by Mr. Snowden mainly in terms of combating terrorism, the court has also interpreted the law in ways that extend into other national security concerns. In one recent case, for instance, intelligence officials were able to get access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.

In the past, that probably would have required a court warrant because the suspicious e-mail involved American communications. In this case, however, a little-noticed provision in a 2008 law, expanding the definition of “foreign intelligence” to include “weapons of mass destruction,” was used to justify access to the message.

The court’s use of that language has allowed intelligence officials to get wider access to data and communications that they believe may be linked to nuclear proliferation, the officials said. They added that other secret findings had 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.”

The official, like a half-dozen other 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.

Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.

Beyond broader legal rulings, the judges have had to resolve questions about newer types of technology, like video conferencing, and how and when the government can get access to them, the officials said.

The judges have also had to intervene repeatedly when private Internet and phone companies, which provide much of the data to the N.S.A., 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. In such cases, the court has repeatedly ordered the N.S.A. to destroy the Internet or phone data that was improperly collected, the officials said.

The officials said one central concept connects a number of the court’s opinions. 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.

This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”

Under the new procedures passed by Congress in 2008 in the FISA Amendments Act, even the collection of metadata must be considered “relevant” to a terrorism investigation or other intelligence activities.

The court has indicated that while individual pieces of data may not appear “relevant” to a terrorism investigation, the total picture that the bits of data create may in fact be relevant, according to the officials with knowledge of the decisions.

Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. “That whole notion is missing in this process,” he said.

The FISA judges have bristled at criticism that they are a rubber stamp for the government, occasionally speaking out to say they apply rigor in their scrutiny of government requests. Most of the surveillance operations involve the N.S.A., an eavesdropping behemoth that has listening posts around the world. Its role in gathering intelligence within the United States has grown enormously since the Sept. 11 attacks.

Soon after, President George W. Bush, under a secret wiretapping program that circumvented the FISA court, authorized the N.S.A. to collect metadata and in some cases listen in on foreign calls to or from the United States. After a heated debate, the essential elements of the Bush program were put into law by Congress in 2007, but with greater involvement by the FISA court.

Even before the leaks by Mr. Snowden, members of Congress and civil liberties advocates had been pressing for declassifying and publicly releasing court decisions, perhaps in summary form.

Reggie B. Walton, the FISA court’s presiding judge, wrote in March that he recognized the “potential benefit of better informing the public” about the court’s decisions. But, he said, there are “serious obstacles” to doing so because of the potential for misunderstanding caused by omitting classified details.

Gen. Keith B. Alexander, the N.S.A. director, was noncommital when he was pressed at a Senate hearing in June to put out some version of the court’s decisions.

While he pledged to try to make more decisions public, he said, “I don’t want to jeopardize the security of Americans by making a mistake in saying, ‘Yes, we’re going to do all that.’”

FISC Already Invented that Database-and-Mining Precedent in Secret | emptywheel

[It’s] not just that the government has done all this in a court with no antagonist. It’s that the government has gone to great lengths to make sure regular courts wouldn’t review these decisions, doing things like:

* Making no mention of the intentional-incidental collection of US person data

* Promising SCOTUS — but then reneging on that promise — that defendants charged with FISA-collected intelligence be alerted to the source of that evidence

* Lying about how easily targeted incidentally collected US persons would be to avoid standing

Effectively, the government has been refusing to let issues that affect a great number of Americans be reviewed in courts with real judicial process.

And then calling the result “law” and “legal” in spite of the fact that almost no Americans know about it.

FISC Will Not Object To Release of 2011 Court Opinion That Confirmed NSA’s Illegal Surveillance

A 2011 FISC court ruling had concluded that some of the NSA’s surveillance programs had violated sections of the Foreign Intelligence Surveillance Act, or FISA, a law aimed at protecting American citizens from surveillance programs targeted at foreigners.

The nation’s most secretive court, as it has been called in the media, said that the 86-page classified opinion can be made public if a district court orders it.

On Friday, the Department of Justice, or DoJ, had argued that the court’s opinion must remain secret and its release of the opinion would contradict the FISC’s own rules on disclosure of classified documents, according to NBC News.

However, the court’s chief judge, Reggie Walton, rejected the DoJ’s arguments and said that the document, which is in the possession of the department, could be released under the Freedom of Information Act, or FOIA, NBC News reported.

“It is fundamentally the Executive Branch’s responsibility to safeguard sensitive national security information,” Judge Walton wrote in the order, according to the Huffington Post. ”As a general matter, it would be redundant for this Court to impose on the Executive Branch additional restrictions.”

The ruling is significant as the NSA’s PRISM program, which has sparked public outrage over Internet users’ privacy rights, is based on the same sections that the FISC found was circumvented by the security agency.

San Francisco-based Electronic Frontier Foundation, or EFF, had filed a lawsuit last year seeking a release of the FISC court’s 2011 opinion.

However, the ruling will not make the opinion immediately available to the public, and EFF will have to pursue the matter in a lower court — where it initially filed its plea — which would then decide whether the document is eligible to be released under FOIA.

EFF attorney Mark Rumold welcomed the court’s ruling and said it is the first victory for a non-governmental party in the FISC.

“It’s important to know that while this is a victory, it is a pretty modest one,” he said. “It’s the FISC realizing that the Department (of Justice) was making crazy arguments, and they quickly got rid of it. Now we have to go right back to the district court.” said Mark Rumold, according to the Huffington Post.

Fisa court oversight: a look inside a secret and empty process | Glenn Greenwald

The way to bring actual transparency to this process it to examine the relevant Top Secret Fisa court documents. Those documents demonstrate that this entire process is a fig leaf, “oversight” in name only. It offers no real safeguards. That’s because no court monitors what the NSA is actually doing when it claims to comply with the court-approved procedures. Once the Fisa court puts its approval stamp on the NSA’s procedures, there is no external judicial check on which targets end up being selected by the NSA analysts for eavesdropping. The only time individualized warrants are required is when the NSA is specifically targeting a US citizen or the communications are purely domestic.

When it is time for the NSA to obtain Fisa court approval, the agency does not tell the court whose calls and emails it intends to intercept. It instead merely provides the general guidelines which it claims are used by its analysts to determine which individuals they can target, and the Fisa court judge then issues a simple order approving those guidelines. The court endorses a one-paragraph form order stating that the NSA’s process “‘contains all the required elements’ and that the revised NSA, FBI and CIA minimization procedures submitted with the amendment ‘are consistent with the requirements of [50 U.S.C. §1881a(e)] and with the fourth amendment to the Constitution of the United States’”. As but one typical example, the Guardian has obtained an August 19, 2010, Fisa court approval from Judge John Bates which does nothing more than recite the statutory language in approving the NSA’s guidelines.

Once the NSA has this court approval, it can then target anyone chosen by their analysts, and can even order telecoms and internet companies to turn over to them the emails, chats and calls of those they target. The Fisa court plays no role whatsoever in reviewing whether the procedures it approved are actually complied with when the NSA starts eavesdropping on calls and reading people’s emails.

The guidelines submitted by the NSA to the Fisa court demonstrate how much discretion the agency has in choosing who will be targeted. Those guidelines also make clear that, contrary to the repeated assurances from government officials and media figures, the communications of American citizens are – without any individualized warrant – included in what is surveilled.

The specific guidelines submitted by the NSA to the Fisa court in July 2009 – marked Top Secret and signed by Attorney General Eric Holder – state that “NSA determines whether a person is a non-United States person reasonably believed to be outside the United States in light of the totality of the circumstances based on the information available with respect to that person, including information concerning the communications facility or facilities used by that person.” It includes information that the NSA analyst uses to make this determination – including IP addresses, statements made by the potential target, and other information in the NSA databases.

The decision to begin listening to someone’s phone calls or read their emails is made exclusively by NSA analysts and their “line supervisors”. There is no outside scrutiny, and certainly no Fisa court involvement. As the NSA itself explained in its guidelines submitted to the Fisa court:

“Analysts who request tasking will document in the tasking database a citation or citations to the information that led them to reasonably believe that a targeted person is located outside the United States. Before tasking is approved, the database entry for that tasking will be reviewed in order to verify that the database entry contains the necessary citations.”

The only oversight for monitoring whether there is abuse comes from the executive branch itself: from the DOJ and Director of National Intelligence, which conduct “periodic reviews … to evaluate the implementation of the procedure.” At a hearing before the House Intelligence Committee Tuesday afternoon, deputy attorney general James Cole testified that every 30 days, the Fisa court is merely given an “aggregate number” of database searches on US domestic phone records.

But when Bush administration officials asked Congress for this new surveillance power, they said quite explicitly that Americans’ communications were the communications of most interest to them. See, for example, Fisa for the 21st Century, Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (statement of Michael Hayden) (stating, in debate preceding passage of FAA’s predecessor statute, that certain communications ‘with one end in the United States’ are the ones ‘that are most important to us’). … The principal purpose of the 2008 law was to make it possible for the government to collect Americans’ international communications - and to collect those communications without reference to whether any party to those communications was doing anything illegal. And a lot of the government’s advocacy is meant to obscure this fact, but it’s a crucial one: The government doesn’t need to ‘target’ Americans in order to collect huge volumes of their communications. Jameel Jaffer

Fisa court oversight: a look inside a secret and empty process | Glenn Greenwald

The vast amount of discretion vested in NSA analysts is also demonstrated by the training and briefings given to them by the agency. In one such briefing from an official with the NSA’s general counsel’s office - a top secret transcript of which was obtained by the Guardian, dated 2008 and then updated for 2013 - NSA analysts are told how much the new Fisa law diluted the prior standards and how much discretion they now have in deciding whose communications to intercept:

“The court gets to look at procedures for saying that there is a reasonable belief for saying that a target is outside of the United States. Once again - a major change from the targeting under Fisa. Under Fisa you had to have probable cause to believe that the target was a foreign power or agent of a foreign power. Here all you need is a reasonable belief that the target is outside of the United States …

“Now, all kinds of information can be used to this end. There’s a list in the targeting procedures: phone directories, finished foreign intelligence, NSA technical analysis of selectors, lead information. Now, you don’t have to check a box in every one of those categories. But you have to look at everything you’ve got and make a judgment. Looking at everything, do you have a reasonable belief that your target is outside the United States? So, cast your search wide. But don’t feel as though you have to have something in every category. In the end, what matters is, ‘Does all that add up to a reasonable belief that your target is outside the United States?’”

So vast is this discretion that NSA analysts even have the authority to surveil communications between their targets and their lawyers, and that information can be not just stored but also disseminated. NSA procedures do not ban such interception, but rather set forth procedures to be followed in the event that the NSA analyst believes they should be “disseminated”.

The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the Fisa court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.