Wednesday, July 24, 2013

The Foreign Intelligence Surveillance Act

What It Is And Why It Doesn't Work

"The complexity of the problem must not be underestimated. Electronic surveillance can be a useful tool for the Government’s gathering of certain kinds of information; yet, if abused, it can also constitute a particularly indiscriminate and penetrating invasion of the privacy of our citizens. My objective over the past six years has been to reach some kind of fair balance that will protect the security of the United States without infringing on our citizens’ human liberties and rights." – Chief Bill Sponsor, Senator Edward Kennedy (emphasis added)

It All Started in the Seventies. In the early 1970s, under Presidents Nixon and Ford, massive abuses of surveillance by the FBI, the CIA, the U.S. Military, and the White House were exposed. In response to these abuses, Congress passed the Foreign Intelligence Surveillance Act (FISA) which, in turn, established the Foreign Intelligence Surveillance Court (FISC or FISA Court). Congress set up this Court to provide a system of judicial review and approval (or denial) of the government's proposed surveillance actions, along with necessary safeguards against abuse whenever the surveillance might involve an American citizen. Because foreign intelligence surveillance requires certain measures of secrecy, the details of surveillance requests and the FISA Court's actions are classified.

Why We Need Control Over Government Surveillance. Working behind closed doors, the FISA Court has the authority to approve or deny government requests for accessing and searching business or personal information – and not just telephone metadata. 

They can also gather specific information from e-mails chat sessions, and text messages, and any attachments. These items can include privileged attorney-client communication, sensitive communication between you and your doctor, and even communication between you and your accountant, tax preparer, financial adviser, etc. 

They can also collect information from sites visited, uploads and downloads made, on-line shopping and purchases – you name it: if it is digital they can access it.  That includes user IDs and passwords for protected sites you visit, including your credit card and bank accounts. They can get such a broad array of information that they can get to know you and your pattern of living better than your closest friends. Anything a hacker can do, they can do, too -- only better.  And they are able to do all this behind a shroud of secrecy, without your even suspecting that they are doing it to you. That is why we need control over such surveillance. It is too dangerous otherwise.

The Foreign Intelligence Surveillance Act of 1978 (FISA). This law was enacted in response to allegations of abuse by the federal government in conducting electronic surveillance. It was recognized that some kind of judicial warrant should be required for such surveillance to protect citizens' rights guaranteed by the Fourth Amendment of the Constitution. This law required the government to obtain a judicial warrant authorizing the surveillance.

The Foreign Intelligence Surveillance Court (FISC or FISA Court) This court was authorized by FISA to review and approve or deny surveillance requests. It consists of a pool of eleven judges, all of whom are appointed by the Chief Justice of the Supreme Court.

Submission of Surveillance Requests. These are usually originated by one of our security agencies, such as the CIA or FBI who sends them to the NSA where warrant applications are prepared and forwarded to the Office of the Attorney General, where they are certified that the proposed surveillance targets are either a foreign power or an agent of a foreign power. (“Agent of a foreign power" is defined as meaning any person, other than a United States person, who acts in the United States as an officer or an employee of a foreign government or any component thereof, whether or not recognized by the United States.) If the target is a U.S. Citizen or a resident alien, he or she must reasonably be believed to be involved in the planning or commission of a crime that poses a threat to our national security.

Secret Hearings with Secret Decisions. Warrant applications are then assigned on a rotating basis to one of the FISA Court judges, who evaluates the requests and either approves or rejects them, based entirely on the statements of government officials. There is nobody to represent the other side of the issue or to protect the people from potentially overreaching requests or decisions. Because of the sensitive nature of this surveillance, the Court's work is performed in secret, so we never know what specific decisions are made and why, or what impact they may have on our Constitutional rights.

Foreign Intelligence Surveillance Court of Review (FISCR). FISA also established this court to serve somewhat like an appellate court for decisions made the the FISA Court. This body consists of three judges, also appointed by the Chief Justice, to review, upon request, decisions made by the FISA Court. Because no no opposing counsel is allowed in the FISA Court cases, the only appeals that are normally allowed are those from the government. From 1978 to 2002, no cases were brought to this Court, and only two are known to have been brought before it since then.

FISCR Rules. The first FISA Court of Review ruling came in 2002. The FISA Court had granted a warrant to the FBI, but made it subject to certain restrictions, most notably of which was that the FBI was not to use evidence gathered under the warrant to prosecute criminal cases. The Court of Review ruled that there was no constitutional basis for the restrictions.

FISCR Rules Again. Six years later, the Court of Review delved into another questionable area when it ruled on and affirmed the constitutionality of the Protect America Act of 2007.

A Second (But Secret) Supreme Court? In ruling on these two issues, the FISA Court of Review made rulings based upon its interpretations of the Constitution, which, at the national level, is the normally considered to be the realm of the Supreme Court. In so doing, the Court of Review may have muddied the line between the role of the two courts and lent credence to the notion that the FISA Court of Review is becoming a second (but secret) Supreme Court.

Disorder in the Court. In 2002, the Justice Department asked the FISA Court to grant them broad new powers, but the Court refused, saying that the government had misused the law and misled the court dozens of times. The court released an opinion alleging that FBI and Justice Department officials had supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one that had been signed by the Director of the FBI at the time.

Bush Administration Ignored Court. Apparently, the Bush administration decided to ignore the FISA Court and the procedures for obtaining approval for surveillance. Three years later, The New York Times reported that the Bush administration had been conducting illegal surveillance of U.S. citizens without the knowledge or approval of the FISA Court since 2002. Four days later, Judge James Robertson abruptly resigned his position as a member of the FISA Court.  Congress later passed legislation making Bush's actions legal and made the law retroactive, to prevent prosecution for illegal search, and to grant immunity to the companies who provided the information to the administration.

Need for Advocate Counsel in the FISA Court.  Former FISA Court Judge Robertson has been quoted as saying, "Anyone who has been a judge will tell you that a judge needs to hear both sides of a case."  He went on to say that, since the government presents instances where it wants to use its powers under FISA to go to the FISA Court without an advocate for the other side, the Court is not well placed to act in an unbiased manner and judge the merits of the case, because the Court hears only one side of the case. He said that the system is flawed because of its failure to allow adversarial counsel to question the government's actions. Robertson said the system needed the presence of a legal adversary to act as a check on the government's programs. 

Another former judge who served on the FISA Court, James Carr, has proposed that the judges themselves could appoint independent lawyers as special counsels on a case-by-case basis. He suggests the advocate should also have the power to appeal FISA decisions to higher courts; something only the government can do at this time.
Without an opposing counsel, Robertson says that when the government presents its case to the FISC without adversarial counsel, the process becomes more like administrative approval process than a court hearing with true judgment on the merits of the case.
Some Food for Thought. How would you feel if eleven people, without any meaningful oversight by, or responsibility to, a higher authority, rotated decision-making among the individual members, one at a time, and ruled secretly on matters that could adversely affect your everyday life, eat away at your democracy, and destroy Constitutional rights that deal with privacy, unreasonable search and seizure, due process, and self-incrimination? Yet, that is exactly we have under FISA.
And Even Worse . . . Those eleven judges on the FISA Court were all appointed by one person (a political partisan who espouses a particular ideology), who is also without any meaningful oversight by, or responsibility to, a higher authority, and without any confirmation hearings, any examination of nominees' philosophies and prior rulings on matters likely to come before the Court, without any public input, and without confirmation or rejection of the nominees by a government body that is elected to represent the welfare and defend the rights of the American people?
But, Worst of All … All of the judges who have ever served on the FISA Court and the FISA Court of Review since it was established in 1978 have been appointed solely by conservative Chief Justices of the Supreme Court, and the present one could continue to do so for a combined total of 25 to 30 years. The sad part is that of all these things are true. Through 2012, FISA Courts have approved 99.97% of the 33,949 requests submitted to them. Does this sound like a good system of checks and balances that should continue indefinitely?
Heading Away from Diversity – and Away from Democracy. If a country allowed all appointments to such powerful positions to be made by one person who is an established partisan politician (and who is accountable to no one), and if these Court appointees operate in secrecy, allowing only one side to present its case with no advocates for the other side, could you honestly view this process as being democratic? Overtly, we claim we live in a democracy, but covertly we we give many indications of creeping more and more toward a totalitarian form of government. And FISA is a major example of this.
Opinions from Law Professionals. Stephen Vladeck, Law Professor at American University's Washington College of Law says:
"Since FISA was enacted in 1978, we've had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity,"
Penn Law Professor, Theodore Ruger says,
The judges are hand-picked by someone” (presently Chief Justice Roberts), “who, through his votes on the Supreme Court, has demonstrated his particular view on civil liberties and law enforcement,. The way FISA is set up, it gives him unchecked authority to put judges on the court who feel the same way he does."
Wouldn't our country would be better served if these judges represented a broader spectrum of political views?
Which Party Is Most Likely to Support Civil Liberties? In the last 30 years, Supreme Court justices appointed by Democratic presidents support civil liberties claims approximately 74 percent of the time, while those appointed by Republican presidents support civil liberty claims only about 38 percent of the time. This is just one example of how the justices appear to arrive at their legal opinions -- largely along party lines. I am sure that our founding fathers would be very disappointed if they knew that any appearance of unbiased and nonpolitical findings and rulings seems to have all but vanished from the Supreme Court.
How does that Apply to the FISA Courts? Over their 35-year history, we find that 91% of the judges for these courts were appointed by Republicans and only 9% were appointed by Democrats. Out of 13 currently-filled positions, only one is occupied by a Democrat. (One position on the three-person FISA Court of Review has been vacant for more than a year.) Because the FISA Court deals largely with issues involving civil liberties, and because 10 of its 11 members are Republicans, that might explain why the FISA Court seems to be more receptive to issuing warrants that might impact civil liberties.
A Little Help from Your Friends. Because of an extremely high rate of approval, the FISA Court has been perceived as being a rubber stamp for the government's surveillance requests. Apparently, there have been more than 500 requests that were not acceptable as submitted, so the FISA Court rulings essentially told the submitters what they needed to change to get those requests accepted. Apparently, that helped the government get its approval rate at 99.97%
FISA Secrecy Attacked. A 2003 Senate Judiciary Committee Interim Report on FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures, cited the "unnecessary secrecy" of the court among its "most important conclusions":
"The secrecy of individual FISA cases is certainly necessary, but this secrecy has been extended to the most basic legal and procedural aspects of the FISA, which should not be secret. This unnecessary secrecy contributed to the deficiencies that have hamstrung the implementation of the FISA. Much more information, including all unclassified opinions and operating rules of the FISA Court and Court of Review, should be made public and/or provided to the Congress."
Allegations of Bias. Elizabeth Gotein, a co-director of the Liberty and National Security Program of the Brennan Center for Justice at the New York University School of Law, has criticized the court as being too compromised to be an impartial tribunal that oversees the work of the NSA and other U.S. intelligence activities. She says:

"Like any other group that meets in secret behind closed doors with only one constituency appearing before them, they're subject to capture and bias."

Julian Sanchez
, a scholar at the Cato Institute, has described the near certainty of the polarization or group think of the judges of the court. Because all of the judges are appointed by the same person (the Chief Justice of the United States) and, because nearly all the judges are of the same political party (the Republican Party), and because these judges hear no opposing testimony and feel no pressure from colleagues or the public to moderate their rulings, group polarization is almost a certainty. He says:

"There's the real possibility that these judges become more extreme over time, even when they had only a mild bias to begin with."

Court Approves Requests, but Not Surveillance Programs.
Stephen Vladeck has argued that the FISA Court reviews requests merely to ensure that they comply with various statutory requirements, including court-approved policies allow the NSA to:

  • keep data that could potentially contain details of U.S. persons for up to five years, and
  • retain and make use of "inadvertently acquired" domestic communications if they contain usable intelligence, information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information relevant to cybersecurity.
However, the Court does not approve the specific surveillance plan. Without having to seek Court approval of the specifics of their plan, the U.S. Attorney General and the Director of National Intelligence can apparently engage in sweeping programmatic surveillance at their discretion.

According to The Guardian:

"The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' calls or email information without warrants."

The Most Revealing and Damaging Insight.
Glenn Greenwald, who published details of the PRISM surveillance program in The Guardian , explained:
“… (T)his 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.
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 , 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. 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.”
What's Wrong with FISA?
  1. It's poorly worded, with terms that are either ambiguous or too broad to be meaningful.
  2. The Court sometimes issues warrants or subpoenas without valid cause.
  3. Along with a FISA subpoena comes a gag order that bars recipients from ever discussing it with anyone except their lawyer(s).
    What's wrong with the FISA Court?
  1. There is entirely too much secrecy. Meaningful information could be shared without revealing vital secrets.
  2. Secrecy can be used to cover up malfeasance. Yet, because of the secrecy, it might never be revealed.
  3. FISA Court members are appointed by one person – the Chief Justice of the Supreme Court. The present Chief Justice could do this for a total of 30-40 years, continually appointing people who share his ideologies.
  4. Ever since FISA was implemented, all Chief Justices have been Republicans, and 91% of the FISA Court members have been Republicans. As a result, Republican Chief Justices have appointed all of the members of both the FISA Court and the FISA Court of Review – almost 50 appointments in total.
  5. Democrats tend to support civil liberties issues by almost a 2 to 1 margin over Republicans. If Republicans on the FISA Court follow suit, we cannot trust them to fully protect our civil liberties.
  6. The FISA Court hears only one side of a case, so they are more likely to rule in favor of that side. As of 2012, the FISA Court ruled in favor of the government 33,938 times out of 33,949 cases.
  7. Requests for warrants or court orders are heard by only one of the seven judges, who serve on a rotating basis. They meet as a group only about six times a year.
What's wrong with the FISA Court of Review?
  1. This body consists of three members, and functions somewhat like an appellate court. However, because 99.97% of the cases in the FISA Court are decided in the favor of the government, there have been very few cases for them to review.
  2. At least twice, this court has overstepped its authority in making rulings on constitutionality, which are normally reserved for the Supreme Court.
Conclusion. Connecticut Senator, Richard Blumenthal, summed things up very concisely:

The FISA court . . . in its current form — unaccountable, secretive, one-sided — is broken. It not only lacks any genuine transparency and accountability, but it also deprives the entire system of trust and credibility in the eyes of the American people. The FISA court is exactly the type of secret tribunal that fanned the flames of revolution we celebrate each July 4. It’s time to change that.”

What Next?
  We will see ongoing debate on these issues to give the impression that Congress as a whole really cares about protecting the privacy of the American people.  They don't want to risk their chances of getting re-elected by not showing proper concern.  However, I have seen little movement toward anything but token legislative changes that will do very little to address these problems.  I hope I am wrong.

<<  Where secrecy prevails, democracy fails.  >>

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