MOXNEWSd0tC0M·
Published on Jan 13, 2014
January 12, 2014 MSNBC News
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Published on Jan 13, 2014
January 12, 2014 MSNBC News
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FISA court, which approves FBI, NSA surveillance, faces reform challenge from Oregon senators
America's
most controversial courtroom has no need for a gavel and no place for a
gallery. In fact, situated on the third floor of the federal courthouse
in Washington, D.C., it isn't so much a courtroom as an office with
thick walls designed to defeat electronic surveillance.
Inside, judges on the
Foreign Intelligence Surveillance Court
pore through -- and almost always approve -- government applications to
eavesdrop on people suspected of acting as agents of foreign
governments. Typically this means allowing the government to snoop on
suspected terrorists or spies on U.S. soil and those who might phone,
text, email or communicate with them from abroad.
Critics have
long accused the court of being a rubber stamp that violates the
constitutional rights of surveillance targets. The panel provoked
national outrage in June, when
The Guardian
newspaper of London published a document -- leaked by former National
Security Agency contractor Edward Snowden -- showing the court ordered
Verizon to turn over millions of Americans' phone records to the NSA.
Though
the court sits three time zones away, it's intimately linked to the
residents of Oregon, whose U.S. senators have sponsored or signed onto
at least eight pieces of legislation to revamp the panel since the NSA
revelations. Those senators -- Democrats
Ron Wyden and
Jeff Merkley -- want to change the law that created the court: the
Foreign Intelligence Surveillance Act of 1978, better known as FISA.
They
say amendments to the law since 9/11 -- along with rapid advances in
surveillance technology -- have created a court with the power to
secretly trample the privacy of ordinary citizens. They want a court
with more transparency in its rulings and an advocate inside the panel
to represent the privacy and civil rights of those targeted by
government eavesdropping.
Oregon possesses a multitude of powerful ties to the court, its decisions and its future.
- Wyden is a senior member of the Senate Select Committee on Intelligence, giving him a rare portal into the doings of the court.
- Since
the terrorist attacks of Sept. 11, 2001, the panel has authorized
surveillance in Oregon of at least 16 people and a nonprofit business
suspected of illegal ties to foreign powers, according to court papers.
- Michael W. Mosman,
one of Oregon's most respected federal judges, was appointed in May as
the newest member of the 11-judge surveillance court. The 56-year-old
judge and his colleagues work alone in one-week stretches to review
piles of FBI and NSA
surveillance applications, presiding over some of the nation's most
closely held secrets. Mosman declined to be interviewed for this story.
- Edward
Leavy, a senior federal appeals court judge in Portland, previously sat
on a little-known panel that reviews the surveillance court's rare
denials.
- Two top-rail attorneys with ties to Oregon -- Todd M. Hinnen, former acting assistant U.S. attorney general for national security, and Jonathan Turley, a George Washington University Law School professor -- have become friendly combatants in a national debate over the court's future.
U.S.
Sen. Ron Wyden is a senior member of the Senate Select Committee on
Intelligence, giving him a rare portal into the doings of the Foreign
Intelligence Surveillance Court.Stephanie Yao Long/The Oregonian
Wyden
receives classified briefings as a member of the intelligence
committee. He says portions of FISA work well but that amendments --
particularly under the
USA Patriot Act -- have made it anachronistic, a vestige of a well-intentioned law run amok in the name of national security.
He's
fond of quoting Benjamin Franklin on the subject: "They who can give up
essential liberty to obtain a little temporary safety, deserve neither
liberty nor safety."
Yet it was liberty that motivated Congress to enact the law in the first place.
--------
During the Cold War years of the 1970s,
President Richard M. Nixon secretly approved orders for domestic electronic surveillance of America's enemies.
Bipartisan
lawmakers drafted FISA to take decisions about such snooping out of the
Oval Office and put them into the hands of the three branches of
government. The
American Civil Liberties Union
blessed the legislation, while some constitutional scholars and civil
libertarians argued that Congress was creating a star chamber.
The law enacted 35 years ago permits the executive branch -- by way of the
Justice Department
-- to snoop on suspects electronically or physically. The judicial
branch staffs the court with U.S. district judges. The legislative
branch, through congressional committees, oversees its decisions.
Congressional
leaders at the time assured Americans that the Justice Department
wouldn't misuse FISA by going after suspected criminals. They expected
only a small number of operations to be approved.
But the court
has approved more than 33,000 surveillance orders, the bulk of them
since 9/11, according to its unclassified annual reports. From 1979 to
2012, the court turned down 11 requests.
--------
Critics of the court call it a panel of rubber-stampers.
Turley,
the law school professor, doesn't question the integrity of the court's
judges. He takes aim at the wording of the law, which in his opinion
allows the government -- including the FBI, NSA, and CIA -- to target
people for surveillance without the basic probable cause standards
afforded by the
Constitution.
"The
statute does not give the judge the authority to turn down applications
when the criteria (for eavesdropping) are met," Turley says. "And those
criteria are so low that they are always met."
He recalls working as an intern at the NSA during the Reagan administration, when he had occasion to go inside the court.
"I
was horrified by what I saw," he says. "It was abundantly clear this
was a Potemkin Village. ... One can only call this a court if you
abandon every substantive meaning of that term. This court has less
authority than a standard municipal traffic court. There is no serious
review, because there's no substantive authority to question or reject
these applications."
Those intimately familiar with the court's
operations, including national security lawyers past and present, say
rejections of FISA applications are rare because they are so
exhaustively vetted before ever reaching a judge.
For example, FBI
agents and their division counsels pore through and edit applications
before passing them to lawyers in both the bureau's headquarters and a
panel of Justice Department lawyers. By law, topmost officials in the
bureau and Justice Department must sign certifications attesting to the
evidence and the need to eavesdrop.
The court's judges also
rigorously review applications. A recently declassified document shows
the panel requires revisions to nearly one in four applications before
approval.
The process is so exacting that FBI lawyers denied
requests by Minnesota agents in 2001 to obtain a FISA order that would
allow them to search the laptop of
Zacarias Moussaoui. The al-Qaida figure is now serving life in prison for his role in the 9/11 conspiracy.
--------
The FBI has investigated six criminal cases in Oregon since 9/11 with evidence obtained under FISA.
Perhaps the most sensational arrest occurred Nov. 26, 2010, when a Somali American teen,
Mohamed Mohamud, attempted to detonate what he thought was a massive fertilizer bomb at Portland's
Pioneer Courthouse Square.
The
bomb, which Mohamud armed to go off during the city's holiday tree
lighting ceremony, was a harmless fake secretly built by the FBI and
introduced to Mohamud by undercover FBI agents posing as al-Qaida
terrorists.
Prosecutors filed a notice after Mohamud's arrest to
let the defense know agents used FISA to collect evidence. (Much later,
on Nov. 19, 2013, prosecutors filed another notice acknowledging the
investigation collected electronic intercepts from overseas.)
The sting operation shocked city leaders. The FBI's
Joint Terrorism Task Force
gave no previous notice about the case to then-Mayor Sam Adams, who
served as police commissioner, because the city wasn't a member of the
multi-agency counterterrorism team. Portland had dropped out of the task
force in 2005, the first city in America to sever such ties.
Read More and Watch Video Here
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Secret US court approved every single domestic spying request in 2012
Published time: May 02, 2013 22:57
Reuters / Jessica Rinaldi
The
United States Foreign Intelligence Surveillance Court quietly rubber
stamped nearly 2,000 government requests to search or electronically
monitor people in the United States last year, according to a Justice
Department report published this week.
The agency, which oversees
requests for surveillance warrants against suspected foreign
intelligence agents on US soil, released the report to Senate majority
leader Harry Reid (D-Nevada), showing that by approving the 1,856
inquiries “
for foreign intelligence purposes,” it had granted
every single government request in 2012. The FISC's approval rating
actually jumped by five per cent from 2011 - when it also approved every
application.
The FISC was instituted as part of the US Foreign
Intelligence Surveillance Act (FISA) in 1978, expanded under the George
W. Bush administration, and then reauthorized by Congress for another
five years in December of 2012.
The act, commonly referred to act the “
warrantless wiretapping”
law, authorizes the government to monitor US citizens' phone calls and
emails without first proving probable cause as long as they’re believed
to be corresponding with an individual overseas.
“
The 1,856
applications include applications made solely for electronic
surveillance, applications made solely for physical search, and combined
applications requesting authority for electronic surveillance and
physical search,” the report read. “
Of these, 1,789 applications included requests for authority to conduct electronic surveillance.”
David
Kris, a former top anti-terrorism attorney at the Justice Department,
wrote in the 2012 edition of National Security Investigations and
Prosecutions that the FISA Amendments Act also gives the government
domestic spying power while stripping away accountability.
Read More Here
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