FISA

Court Secretly Loosens Surveillance Rules and Expands NSA Power

|

Approved
Public Domain

I have, oh-so-cynically, referred to the court set up under the Foreign Intelligence Surveillance Act as a "phony baloney" court that grants rubber-stamp approval to virtually every snooping request that comes its way. Of course, I base that subjective assessment on the fact that, in 11 years, the court has denied only 10 applications, and modified a few dozen, and approved more than 15,000. The president says if people share my jaded take on such judicial review, then "we're going to have some problems here." But, as noted at Reason 24/7, we already have a problem, in that this rubber-stamp body is secretly transforming the laws governing surveillance, and enormously expanding the powers available to the National Security Agency,

From the New York Times:

WASHINGTON — 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.

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. …

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.

I'm trying to imagine some interpretation of this court's activities that's not problematic, but it's not coming. If we're going to grant government agencies new authority to conduct domestic surveillance with little requirement for authorization or oversight — and I don't think we should under any circumstances — then that should be done after some sort of public debate so that people are at least aware of what's occurring. That the reinterpretation and loosening of constitutional restrictions goes on behind behind closed doors, and that the surveillance authorized by this court is then subject to gag orders so that those compelled to disclose information under loosened standards can't reveal the fact, is every bit as horrifying to me as the mass collection of personal data itself.

NEXT: Brazil Asking the US To Explain Monitoring of Brazilian Emails and Phone Calls

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. 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.

    What better gift could there be for a “special needs” Presidency?

  2. This puts lie to the claim that these sorts of programs can be held accountable by top men in secret. What happened here is the judges were totally co-opted by the government. It is human nature. These judges spent months and years working exclusively with the FBI on these cases, with no scrutiny and no adverse party. It is not surprising at all the FBI co-opted them. The FBI can be quite charming when they want to be. They can show all of this secret stuff. They can make you feel like you are on the front lines defending the nation. It doesn’t happen over night. But slowly in that environment even a conscientious judge can go native and start viewing their job as enabling the FBI to get around the law rather than enforcing the law. Any system of oversight that allows the regulated party to have unlimited and secret access to the parties responsible for the oversight is going to result in the complete break down of oversight.

    1. But slowly in that environment even a conscientious judge can go native and start viewing their job as enabling the FBI to get around the law rather than enforcing the law.

      The job of a judge is to defend the government from uppity peasants with the coin to hire an attorney.

    2. Human nature on a smaller scale, but in the same vein, think of the crime lab technicians who start to think of themselves as cops in lab coats. Objectivity goes away because they are serving a higher purpose.

      There’s a reason we have the analogy of taking a bite of the forbidden fruit. Once you give in to temptation, it’s hard to stop.

      1. Makes me think of running a race. It’s fairly easy to avoid walking the first time, but once you do walk, the next time you get tired it’s really hard not to slow down again.

      2. That is a good example. I see it a lot in government legal circles. Being a lawyer is kind of boring and really nerdy. But being an LEO is glamorous and cool, at least to most dorky lawyers. So the lawyers start to view themselves as cops. Instead of being the conscience of the organization whose job it is to be outside of the organization and keep it on the straight path, they view themselves as part of the team whose job it is to get to yes, or in other words torture the law so it allows whatever the team wants to do.

        1. I see the same thing in the building code. As a building designer we work the code book to benefit the client and the building officials absolutely think it is their job to find fault with anything you do because if there is nothing wrong with your plans what is a plan checker for. Government is not there to promote anything it is there to show you how wrong the citizen is. that is what it’s purpose has become otherwise it would just be here to protect the boarders and it can’t even do that.

          1. I freaking hate the governmental building code. I see no reason that private building codes could not be created and the home buyer/builder could choose which code they want to follow.

            Quick anecdote: A customer built a concrete house with concrete floors. The building inspector made them redo the fireplace because the hearth wasn’t deep enough. The reasoning was that sparks might fly out and ignite the flooring material.

            1. Building codes are such textbook examples of unintended consequences and an area where the government is so much worse than the private sector would be.

              What people don’t realize is that the codes create a false sense of security. People think because the building meets code it is safe and isn’t going to fall apart. That is totally untrue. You see this with new homes all of the time. The home “meets code”. But the code doesn’t cover the fact that it was built on unstable ground and starts to settle in six months.

              Take away the security blanket of building codes and there would be business that did nothing but inspect buildings and give them their seal of approval. And since those businesses would have to provide value, they would inspect for the right things, not just whatever some town council or state code commission thought was good.

            2. Here is another silly anecdote: One of my clients house is 100% off the grid with solar power yet the state still requires the house to meet the min 50% fluorescent lighting requirements in kitchens and all other energy saving requirements.

          2. How can they justify their employment if they don’t find things at fault?

            So they feel they must find problems. Even if there are no problems to find.

            1. How can they justify their employment if they don’t find things at fault?

              This.

              When your jobs depends on things being faulty, you are going to find more of that. Doubly so when you work for government and want to show people how important you are. These peasants should be kissing your feet.

              And when your job depends on finding racism, you will find a whole lot of it out there, too. Sharpton & Jackson, I am looking at you!

          3. It’s a nice little protection racket that was probably a collusion between .gov and designers. I mean, if there is so much code that your lay person can’t design their own building, they HAVE to hire an architect or engineer.*

            *As a designer myself I like to think that I add more value to a building project then just being able to navigate code.

            1. I fully agree with with the added value of good design but on many commercial projects the entire job is nothing but code navigation.In California that is.

  3. I’m such a schizo optimist / pessimist. Every time I hear of things like this, my jaw drops to the ground. How can any judge or legislator, hell anybody period, think secret courts and secret laws are right in any sense of any morality?

    But once I’ve finished picking my jaw off the floor, I hear myself thinking “Yeah, right.” and going on to something else. I expect no better from the control freaks.

    1. Every time I hear of things like this, my jaw drops to the ground. How can any judge or legislator, hell anybody period, think secret courts and secret laws are right in any sense of any morality?

      Because they are all special little snowflakes who have spent their entire lives from birth through college being told how superior they and everyone like them are to everyone else. As long as the right people are doing this, it will never be abused. They honestly think this shit.

  4. I am betting that the 10 applications that were turned down were done so not because they were overreach by the government but because they were done on the wrong form, used the wrong font, had misspellings or were concerning subjects that the court had already ruled that the government could do whatever they wanted and the warrant was unneeded..

    1. They probably didn’t get the memo to use the new cover sheet on the application. Or they got the memo and just forgot that one time.

      1. Yes, you must use the new cover sheet or you have to start all over again.

        1. TPS reports?

  5. Happy Roswell Day Resonoids.

    1. Were you able to help the Google alien find its way home?

      1. What’s the deal with not being able to kill the horse? I keep going back there with everything I find and try using them on it, but it wont die. So frustrating.

      2. Yes, but it took a while, and I didn’t quite understand what happened to get the last part. I rang the bell and nothing happened, but after feeding the rooster and getting the feather I rang the bell again and the last part fell from the guys bed.

        Confused.

        1. Bell? What bell? I fed the nuclear fuel to the tree, then from the branch tickled the guy’s nose with the feather.

          1. Nuclear fuel?

            You are fucking with me, right?

            1. Nope. Near the cow is a hole and at the bottom is a can of nuclear fuel. It will make the horse grow big, but it wont kill him.

  6. Was Congress aware of all of this?

      1. WAS CONGRESS AWARE OF THIS?? [Stomps feet.]

        1. Once they got today’s paper, yes.

        2. DOES CONGRESS CARE?

          1. Don’t go being all pertinent on me.

            1. My nipples are quite pertinent today. Thank you.

  7. and that the surveillance authorized by this court is then subject to gag orders so that those compelled to disclose information under loosened standards can’t reveal the fact

    This is the worst part. They explicitly exempt themselves from due process.

  8. We’re getting closer to the day when G-men show up at your door to arrest you, informing you that you were observed in secret, tried in secret and convicted in secret. Now it’s time to go to the secret prison. When will you be getting out? That’s a secret too.

    1. I read something like this once. You turn into a cockroach at the end, right?

    2. KORPORASHUNNNNSSSS!!!!!!!

  9. 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.

    Um…

    I’ve read the Constitution. Several times. (It was like 100 years old, written by white slave owners and was hard to read…but I plowed through it anyway.) And I see no exception clause associated with the 4th Amendment. No, “except in time of war.” No, “except during national emergencies.” Nowhere in the text does the Constitution grant the courts the authority to make exceptions to the Bill of Rights. In fact, in their great wisdom, the founders (the old white slave owners) gave us a way to change the parts of the document we don’t like, in that Article 5 thingy.

    Um…folks…I took an oath to support and defend the Constitution against all enemies, foreign and domestic and to bear true faith and allegiance to the same. I’ve thought awfully hard about what that means and what set of circumstances would be required to act on that oath.

    I hope to Christ this story is inaccurate.

    1. Keep hoping. The government is afraid of the people and becoming more paranoid by the day. History has demonstrated that it won’t end well.

    2. Francisco, I don’t see any reason to believe that this story is inaccurate.

      Sure, the expansion of the “special needs” doctrine to terrorism is officially “secret”, but a variety of credible sources have reported, or at least hinted, that this interpretation is operative in the FISA court.

    3. You don’t understand. Judges have magical glasses like Joseph Smith that allow them to see things on the Constitution that mere mortals simply cannot see.

      Most of the time it’s some form of the word reasonable.

      Some examples:

      “Congress shall make no unreasonable law…”

      “…shall not be unreasonably infringed.”

      1. All the exceptions to the BoR is on the back written in invisible ink that require the special glasses invented by Ben Franklin to see. Kind of like the treasure map on the back of the Declaration of Independance. Except the back of the constitution just says “Fuck you, that’s why” with a big middle finger.

  10. You turn into a cockroach at the end, right?

    Of the cockroaches, for the cockroaches, and by the cockroaches.

    Don’t worry, everything is under control.

  11. Nowhere in the text does the Constitution grant the courts the authority to make exceptions to the Bill of Rights.

    An obvious oversight, easily rectified.

    1. The constitution is an undead document.

    2. It’s in a penumbra or something.

  12. I will let you know what I approve, and that alt-text is on the list.

  13. Along these lines:

    Negotiating leverage has come from a seemingly mundane government power: the authority of the Federal Communications Commission to approve cable licenses. In deals involving a foreign company, say people familiar with the process, the FCC has held up approval for many months while the squadron of lawyers dubbed Team Telecom developed security agreements that went beyond what’s required by the laws governing electronic eavesdropping.

  14. Osama bin Laden thought our civil liberties were a facade and that if we were under siege by terrorism, our civil liberties would melt away, and we would be able to see our government for the oppressor it really is.

    Osama bin Laden was wrong about a lot of things, and he was evil both in what he did and in his intentions…

    But broken clocks tell perfect time twice a day.

    1. Being evil doesn’t prevent a person from being insightful, probably helps.

    2. Except most people AREN’T seeing the government for the oppressor it really is. They’re celebrating it.

  15. Most of our fellow citizens won’t have a problem with any of this. The government’s job is to keep us safe. And if that means secret laws and secret courts, or it means a cavity search to go watch the fireworks in Boston, it’s all OK.

    1. Yeah, well, who is keeping us safe from the government?

      1. the reference to a cavity search was in lieu of a sarc tag

        1. I wasn’t directing that at you but at them. They who think we need all of this to be safe.

        2. the reference to a cavity search was in lieu of a sarc tag

          It’s scary that I almost opened a new tab to search for the story about that happening before I saw your second post. Has it really gotten so bad that I wouldn’t be surprised if that had actually happened?

          1. My wife started tearing up watching the news reports showing police, TSA and soldiers doing security in Boston. She said it looks like what happens in other countries, not in America. So yeah, it’s gotten pretty bad.

      2. The government is us. Why do you need to be kept safe from yourself? The only reason would be that you are suicidal. If you are suicidal, you should be put in a mental institution to protect yourself. If you are in a mental institution you are crazy.

        If you think you need to be kept safe from the government, you are crazy. QED.

        1. I am not a number; I am a free man!

          1. Until “they” tell you otherwise!

    2. I’m far more fearful of my own government than I am of any terrorist organization.the government can quite spying on it’s own citizens and let the people deal with terrorist.

  16. I’ve thought awfully hard about what that means and what set of circumstances would be required to act on that oath.

    *forwards comment to SPLC*

  17. I’m having a hard time finding the part of the constitution that gives the U.S. government the authority to have a secret agency spying on American citizens and a secret body of law which, I suppose, says “Fuck you, that’s why” in legalese. However, I’m having no problems at all finding the parts about unreasonable searches, or facing your accuser.

    1. It’s in the constitution, in Latin:

      Pedicabo tu, est quare

  18. I dont understand what “secret interpretation” means. And how can an alegedly free republic survive such nonsense?

    1. It doesn’t.

  19. It seems like the whole point is to be able come to absurd conclusions like your daughter is safe with Steve Smith.

  20. absurd conclusions like your daughter is safe with Steve Smith.

    He’s a licensed babysitter. What could possibly go wrong?

    1. Absolutely nothing! He has the best of intentions.

  21. “out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures”

    Somebody clearly hasn’t read the 4th. Unfortunately, in many ways, the 4th does NOT require a warrant for, for example, seizures. It merely says seizures must be reasonable. It says warrants must be supported by probable cause, but it in no place states a warrant is required for a search, let alone a seizure. If warrants were required for seizures, a cop couldn’t make a traffic stop w/o a warrant, and even the ACLU doesn’t argue cops should need a warrant to make a traffic stop (a form of seizure).

    Many state constitutions are much more restrictive on the govt. vs. the 4th (thankfully, mine is), which makes seizures and /or arrests by the govt. much more limited (my state for example outlaws pretext stops, DUI checkpoints, search of a motor vehicle incident to arrest, etc. etc.).

    1. Dunphy, you’re wrong, yet again. Let me show you:
      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.

      It’s really not that complicated.

      1. It does not say a warrant is required for searches and seizures. Again, READ it

        and if it did, no cop could make a traffic stop w/o a warrant

        1. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,

          That means you have the right to be secure. The second part talks about when warrants (ie; reasonable searches and seizures) shall be issued.

          1. shall not be violated,

            Key part there.

            1. And again it nowhere says a Warrant is REQUIRED for “searches and seizures”

              If it did, no traffic stop would be legal w/o a warrant.

              Even Kunstler wouldn’t make this argument. It’s ridiculous. Read the 4th amendment again. It would be VERY different if it said “No search or seizure is lawful without a warrant and a warrant must be supported by probable cause”.

              It only says the 2nd part, not the first.

              THat’s why traffic stops w/o a warrant are legal.

              Ditto terry stops, and ditty many summary arrests (like if I witness an assault I don’t need a warrant to make an arrest. otoh, if i GET a warrant because I want the PC to extend in time and distance (like entering into NCIC), THEN I need to use my PC to GET a warrant.

              But a warrant is not required for searches and seizures. Not according to the 4th

              1. And again it nowhere says a Warrant is REQUIRED for “searches and seizures”

                What part of “Shall not be violated” do you not understand?

          2. and it nowhere says “a warrant is required for searches (or seizures)”. It says they must be reasonable. What it says is that warrants must be supported by PC.

            it does NOT say searches are only valid pursuant to warrant, let alone seizures.

            Again, *if* it did, no seizure would be valid w/o warrant, not even a traffic stop.

            I can’t help it if if you can’t read what it says in plain text

        2. Um…a traffic stop is neither a search OR a seizure. You only get to do it if a law was broken.

          Or have you and your brute squad been under the impression that you can stop anyone you want, for any reason?

        3. Are you fucking retarded? Let me brake it down for you:

          No warrants shall be issued to search or seize persons or things unless there is probable cause that is supported by Oath or affirmation. The warrant must describe the place to be searched and the persons or things to be seized.

          I know it was written 100 years ago by white slave owners who spoke some weird version of American, but jesus christ a 6th grader could tell you what it means.

    2. Not that I think for a second, fwiw, that all this FISA secret we can do whatever we want bullshit is consistent with the 4th. Imo, it isn’t. It’s UNreasonable.

      Clearly, it is rubber stamping, just based on those statistics.

  22. You know, “FISA Court” isn’t a very good name for this sort of thing. I mean, if we’re going to have secret courts issuing secret orders and making up secret interpretations of law, I don’t think it’s asking too much for them to have a little panache while they do it. They need a much cooler name. How about “Star Chamber.” That’s much hipper. Kind of catchy too. “Star Chamber” just rolls of the tongue much nicer than “FISA Court.” /Sarc

  23. Isn’t it time we fight the Orwellian language used by the government such as when they name the tyrannical act the “Patriot Act ” and call it what it really is, the Police State Act.

    Don’t let them turn the language on its HEAD!

Please to post comments

Comments are closed.