The American Bear

› 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.

› Revealed: NSA collecting phone records of millions of Americans daily | The Guardian

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

The disclosure is likely to reignite longstanding debates in the US over the proper extent of the government’s domestic spying powers.

Under the Bush administration, officials in security agencies had disclosed to reporters the large-scale collection of call records data by the NSA, but this is the first time significant and top-secret documents have revealed the continuation of the practice on a massive scale under President Obama.

[…]

It is not known whether Verizon is the only cell-phone provider to be targeted with such an order, although previous reporting has suggested the NSA has collected cell records from all major mobile networks. It is also unclear from the leaked document whether the three-month order was a one-off, or the latest in a series of similar orders.

The court order appears to explain the numerous cryptic public warnings by two US senators, Ron Wyden and Mark Udall, about the scope of the Obama administration’s surveillance activities.

For roughly two years, the two Democrats have been stridently advising the public that the US government is relying on “secret legal interpretations” to claim surveillance powers so broad that the American public would be “stunned” to learn of the kind of domestic spying being conducted.

Because those activities are classified, the senators, both members of the Senate intelligence committee, have been prevented from specifying which domestic surveillance programs they find so alarming. But the information they have been able to disclose in their public warnings perfectly tracks both the specific law cited by the April 25 court order as well as the vast scope of record-gathering it authorized. [READ]

› Feds Won't Say if NSA Surveilled New York Terror Suspects | David Kravets

Federal authorities prosecuting brothers on allegations they plotted to blow up a high-profile target in New York City are refusing to confirm publicly whether they cracked the case by employing a style of warrantless electronic eavesdropping first introduced by President George W. Bush in the wake of 9/11.

The reason, attorneys affiliated with the defense suggest, is because such a concession would create the nation’s first eligible defendant to challenge the constitutionality of the surveillance tactics, which Congress codified into law in 2008 and then again in December.

The government has never publicly conceded it has used evidence in a criminal case obtained through the National Security Agency’s post-9/11 mass surveillance program. A single acknowledgment could open the floodgates to challenge the surveillance tactic, which Supreme Court Justice Stephen Breyer in February noted that “commonsense” (.pdf) tells us is being employed by federal investigators.

The terrorism case concerns brothers Raees Alam Qazi, 20, and Sheheryar Alam Qazi, 30. Among other things, prosecutors said the younger Pakistani-born brother surfed Al-Qaida internet sites to learn how to build a bomb [of course!]. The FBI recorded telephone calls linking him to a plot to blow up a New York landmark last year.

… [The Judge in the brothers’ case, U.S. Magistrate John] O’Sullivan, agreeing with a defense motion, ordered (.pdf) prosecutors last week to say whether the government first acquired evidence against the indicted brothers (.pdf) using the Bush-style surveillance, and then used that evidence to obtain the traditional warrant from the secret court.

… [T]he government has never publicly admitted in a prosecution that it employed warrantless surveillance under the FISA Amendments Act. Doing so likely would trigger legal challenges over whether the tactic is constitutional — and would threaten the Qazi brothers’ case and perhaps countless others.

“This could open the door again at the Supreme Court,” said Patrick Toomey, national security fellow at the American Civil Liberties Union.

The development comes nearly three months after a fractured Supreme Court halted a legal challenge to the warrantless surveillance law at issue in the brothers’ case.

A divided Supreme Court, ruling 5-4, set aside the challenge because the plaintiffs — journalists and human-rights groups — had no evidence they were surveilled under FISA Amendment Act authority [and therefore no standing to sue]. Justice Samuel Alito, writing for the majority, said the plaintiffs “merely speculate and make assumptions.”

But the court’s decision did not foreclose a constitutional challenge. The justices said that, if the government “intends to use” evidence obtained in such a manner, the defendant “may challenge the lawfulness of the acquisition.”

Justice Breyer, in dissent, said the case should have proceeded to trial. Of the spying, he wrote: “Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”

In court documents Thursday, Assistant U.S. Attorney Karen E. Gilbert urged O’Sullivan to set aside his order in the Qazi matter.

Gilbert said that, within weeks, the authorities will file a declaration from U.S. Attorney General Eric Holder that the information O’Sullivan has ordered disclosed is “sensitive national security information.” [of course!] (.pdf)

More on the referenced SCOTUS case, Clapper v. Amnesty International, here.

› Surveillance State Unchecked: Secret Spy Court Rejected Zero Requests in 2012 | The Dissenter

An annual report to the United States Senate by the Justice Department shows the Foreign Intelligence Surveillance Court did not deny one single request made to the court by federal law enforcement. All applications to conduct electronic surveillance or “physical searches for foreign intelligence purposes” were granted.

› ACLU Blasts Supreme Court Rejection of Challenge to Warrantless Spying Without Proof of Surveillance | Democracy Now!

The whole interview is worth watching, but I wanted to point out this exchange and its relationship to the drone “oversight” discussion:

NERMEEN SHAIKH: … You’ve also suggested that Justice Alito’s opinion seems to be based on the idea that a FISA court may at some point subject this law to constitutional review. What is a FISA court?

JAMEEL JAFFER: Right. So there is a—there’s a passage in Justice Alito’s opinion for the court that suggests that the result of yesterday’s decision isn’t that the law will be altogether immunized from judicial review. And he points to this FISA court system, this secret court system in which judges selected by the chief justice of the Supreme Court hear government proposals for surveillance. So there is this secret court system that most Americans don’t know about.

AMY GOODMAN: Where is it? Where are these courts?

JAMEEL JAFFER: It’s in Washington, D.C. They meet—they used to meet in the Justice Department building. My understanding is they have their own building now. It’s 11—

AMY GOODMAN: Secret building?

JAMEEL JAFFER: —eleven judges. They meet. They meet in secret. Only the government appears before them. They don’t customarily publish their decisions. And so, for Justice Alito to suggest that this is a sufficient check against the possibility of abuse or a sufficient system to ensure that our laws, like the Foreign Intelligence Surveillance Act, are actually constitutional, you know, obviously I think that that is beyond wrong. It’s—the idea that the Fourth Amendment will be protected in secret with secret opinions and only the government appearing before the court, I think is an idea completely foreign to the Constitution.

This is reason number ∞ that a “FISA-like” drone/targeted killing court is a terrible idea.

Judge James Robertson, a former Foreign Intelligence Surveillance (FISA) Court member, put it this way:

But — say the politicians, pundits and professors — courts routinely rule on government requests for search warrants and, in the national security context, on requests for foreign intelligence surveillance. Why not requests for drone strikes? The answer is simple: A search warrant is not a death warrant.

And the search warrant is just a rubber stamp.

› Senators Ask Surveillance Court to Summarize Opinions | Secrecy News

Several members of the Senate Intelligence Committee wrote to the Foreign Intelligence Surveillance Court this month to ask the Court to prepare summaries of classified opinions that represent significant interpretations of the Foreign Intelligence Surveillance Act in order to facilitate their declassification and public release.

Meanwhile, the U.S. Supreme Court ruled that plaintiffs challenging the constitutionality of the FISA Amendments Act lacked the requisite legal standing to pursue their case, effectively foreclosing public oversight of intelligence surveillance through the courts.

The Senate letter, the text of which was not released, stems from an amendment to the FISA Amendments Act that was introduced by Sen. Jeff Merkley in December to promote declassification of significant Surveillance Court opinons. The Merkley amendment was not adopted — none of the legislative proposals to increase accountability were approved — but Senate Intelligence Committee chair Sen. Dianne Feinstein promised to work with Sen. Merkley to advance the declassification of FISC opinions.

“An open and democratic society such as ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statute,” said Sen. Merkley at that time. “The opinions of the FISA Court are controlling. They do matter. When a law is kept secret, public debate, legislative intent, and finding the right balance between security and privacy all suffer.”

“I wish to address, if I could, what Senator Merkley said in his comments,” said Sen. Feinstein during the December 27 floor debate. “I listened carefully. What he is saying is opinions of the Foreign Intelligence Surveillance Court should, in some way, shape or form, be made public, just as opinions of the Supreme Court or any court are made available to the public. To a great extent, I find myself in agreement with that. They should be.”

“I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions,” Sen. Feinstein continued. “[…] When possible, the opinions of the Foreign Intelligence Surveillance Court should be made available to the public in declassified form. It can be done, and I think it should be done more often. If the opinion cannot be made public, hopefully a summary of the opinion can. And I have agreed with Senator Merkley to work together on this issue.”

That letter, signed by Senators Feinstein, Merkley, Ron Wyden and Mark Udall, has now been sent to the FISA Court, where it awaits an official response.

Though the letter itself is a modest step, the willingness of congressional overseers to assert themselves on behalf of public accountability takes on new importance in light of yesterday’s Supreme Court decision (by a 5-4 vote) to block a constitutional challenge to the FISA Amendments Act. That decision all but closes the door to public oversight of the law’s implementation through the courts. [++]

› Supreme Court Rejects Challenge to Surveillance Law | NYT

In a 5-to-4 decision that broke along ideological lines, the Supreme Court on Tuesday turned back a challenge to a federal law that authorized intercepting international communications involving Americans.

Writing for the majority, Justice Samuel A. Alito Jr. said that the journalists, lawyers and human rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. Their fear that they would be subject to surveillance in the future was too speculative to establish standing, he wrote.

Justice Alito also rejected arguments based on the steps the plaintiffs had taken to escape surveillance, including traveling to meet sources and clients in person rather than talking to them over the phone. “They cannot manufacture standing by incurring costs in anticipation of non-imminent harms,” he wrote of the plaintiffs.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas joined the majority opinion.

In dissent, Justice Stephen G. Breyer wrote that the harm claimed by the plaintiffs was not speculative. “Indeed,” he wrote, “it is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen.” Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined his dissenting opinion.

The decision, Clapper v. Amnesty International, No. 11-1025, probably means the Supreme Court will never rule on the constitutionality of the law, a 2008 measure that broadened the government’s power to eavesdrop on international communications. The law, an amendment to the Foreign Intelligence Surveillance Act, was passed after the 2005 disclosure of the Bush administration’s secret program to wiretap international communications of people inside the United States without obtaining court warrants. The electronic spying, intended to help pursue terrorists, began after the attacks of Sept. 11, 2001.

The 2008 law was challenged by Amnesty International, the American Civil Liberties Union and other groups and individuals, including journalists and lawyers who represent prisoners held at Guantánamo Bay, Cuba. The plaintiffs said the law violated their rights under the Fourth Amendment by allowing the government to intercept their international telephone calls and e-mails.

› The Idiocies of "Oversight" and "Accountability" (2) | Once Upon a Time...

In a NYT article about the Senate hearing on Brennan’s nomination to be C.I.A. Director, we are told:

Adding a new element to the roiling debate [about targeted killing by drone strikes — but good lord, what “roiling debate”??], the committee’s chairwoman, Senator Dianne Feinstein, Democrat of California, said she would review proposals to create a court to oversee targeted killings. She gave no details but said such a court would be analogous to the Foreign Intelligence Surveillance Court, which oversees eavesdropping on American soil.

Mr. Brennan was noncommittal, noting that lethal operations are generally the sole responsibility of the executive branch. But he said the administration had “wrestled with” the concept of such a court and called the idea “certainly worthy of discussion.”

The FISA court is regarded by almost everyone as an admirable model for oversight of especially sensitive issues. This is because almost everyone is irredeemably stupid. You may sense a theme here, just as you may conclude that I have run out of patience on these points. You have no idea. Does anyone appreciate what the FISA court represents and what it actually does?

The following short paragraph is from an article I published almost five years ago:

I must immediately interject that to discuss these issues [pertaining to liberty and privacy] with regard to FISA is ludicrous in a much deeper sense. As Jonathan Turley explains here, FISA itself is a secret court whose very purpose is to circumvent the requirements of the Fourth Amendment. The FISA court is no protection against illegitimate government intrusion at all. But as Turley notes, that we are fighting over whether to grant the executive branch and FISA still more untrammeled authority to disregard constitutional rights is a measure of how far we have already marched toward tyranny. And look at this chart to see just how compliant the FISA court is.

Take a careful look at that chart, which now includes data up to and including 2011. Here’s the link again. In 2010, 1,579 FISA applications were presented; 1, 579 were approved. In 2011, 1,745 FISA applications were presented; 1,745 were approved.

The chart begins with 1979. In all the years from 1979 through 2011, applications were not immediately approved in only five years. Out of the many thousands of applications presented, a total of 11 were not approved. If you read the footnotes, you discover that even the “rejections” were usually not ultimate “denials of the requested authority”; the government would make minor modifications to the application in question, and it was then approved. In other words, the FISA court is a governmental rubber stamp of the first order. It represents no meaningful oversight in any manner whatsoever.

And this is regarded as a model of “oversight” — and this is the model touted as one to be utilized for applications to murder people on the basis of inconclusive, erroneous, or entirely non-existent information (non-existent with regard to particular individuals in the case of “signature strikes” — see this post for further discussion of these points). All of which is to say that, even if there were some court to “oversee” the administration’s Murder Program, it would represent only the most superficial procedural camouflage for what would remain a monstrous evil. [++]

› Secret Surveillance Court Gets New Presiding Judge | David Kravets

Perhaps the only thing we know about the goings on of the secret Foreign Intelligence Surveillance Court — other than it granting the government unfettered spy powers — is that it’s getting a new presiding judge.

The 11-judge court was set up in the wake of the Watergate scandal in the President Richard M. Nixon era, and is best described as a rubber-stamp for giving the federal government carte blanche powers to spy on Americans at home or abroad.

The court is not in Iran or Venezuela, as one might expect, but meets in secret in the District of Columbia with federal authorities and doles out spy warrants without even knowing a target’s name. No probable cause is necessary, as long as the feds attest that the electronic eavesdropping is material to an investigation.

Chief Justice John Roberts — whose position as head of the Supreme Court is responsible for naming judges to seven-year terms, has appointed District of Columbia U.S. District Judge Reggie B. Walton as the presiding judge. Walton replaces U.S. District Judge John D. Bates, another District of Columbia judge whose secret-court term expires Feb. 21. Walton was on vacation Thursday and unavailable for comment.

[…] Congress clearly loves the secret court. Just last year, it thwarted efforts to require the Justice Department to publish unclassified versions of the court’s opinions.

Instead, Congress reauthorized for five years the secret court’s rubber-stamping abilities on Dec. 28, three days before they expired, under a law known as the FISA Amendments Act. (.pdf)

President Barack Obama signed the package on Dec. 30, reauthorizing the broad electronic eavesdropping powers that legalized and expanded President Bush’s warrantless wiretapping program secretly implemented in the wake of 9/11.

› Down the Rabbit Hole: The Obama Administration’s Version of Transparency | Falguni Sheth

[…] The “Alice in Wonderland” reference that Judge Colleen McMahon made in her ruling on drone strikes last week is an apt literary allusion to the craziness, the upside-downness, the inversion of meaning of all statements emerging from the White House and…its fore(wo)men?

Today, when a memo is prefaced with a statement about the need for transparency, one can be fairly certain that the purpose of the memo will be the opposite. When the POTUS’ allies insist that they are pushing for the renewal of FISA for the “safety” of the American people, what comes to mind are the Muslim men (who are known to be) in detention in the U.S. and the fear that non-whites have of being arrested, detained, or deported. It is clear that FISA is being used against the “safety” of Americans, and its absence of oversight is used to guard against detecting the misuse and abuse of secret surveillance privileges by government offices.

When Obama insists on nominating Brennan—a man who endorsed torture, denied civilian casualties, and was himself responsible for leaks—to be the next director of the CIA—literally biding his time for 4 years until the furor of Brennan’s notoriously unethical credentials inevitably died down (Feet! To the Fire!), I can only believe that Obama and his Administration are only interested in continuing—as Glenn Greenwald calls it—the never-ending War on Terror.

Perhaps it is hardly shocking that the POTUS–and our Senators and Congresspersons—continually refer to that ubiquitous, irrefutable, state of national security in order to invoke a continual state of emergency. But the unflinching, chest-strutting, arrogance with which they do so—while creating ever-growing secret kill lists and disposition matrixes, is in large part engendered by the voters who continue to rehire them on the grounds that torture, drones, renditions—are tastier, more flavorful, and absolutely more palatable when done by a liberal.

After all, would you rather have Romney?

› Leaked White House memo shows FISA was just as Obama wanted | Daily Dot

… The memo, acquired by Techdirt’s Mike Masnick, isn’t classified, though it wasn’t otherwise made public, either. It offers point-by-point rebuttals to each of the four senators who wanted to lessen FISA’s power. Notably, it strongly reflects the same arguments made by Dianne Feinstein (D-Calif.), who claimed on the Senate floor to be representing the White House’s position. Feinstein offered official rebuttal to each of the four amendments after they were presented to the Senate on Thursday [Dec. 27th].

The memo, just two pages long, is uncomplicated. It names each amendment and the senator who sponsors it, offers a one-sentence explanation of what it does, and lists “talking points” to debate against it. [++]