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Posted by on Jul 7, 2013 in Featured, Government, Law, Politics | 36 comments

Sunday’s Must Read: FISA Expands NSA Powers In Deep Secret

There’s irony here that future generations may enjoy but which makes learning about this almost too much to bear. A government program established by Congress post-Watergate “as a check against wiretapping abuses by the government” is being used to expand the government’s ability to spy on its citizens.

The program, of course, is FISA – the Foreign Intelligence Service Act – and the FISA Court that authorizes “electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power.” In 2008, a Democratic Congress followed the lead of Republican President George Bush to push the “most comprehensive overhaul of American surveillance law since the Watergate era.” At the time, America was reeling from revelations of the Bush Administration’s warrantless wiretapping program.

From the New York Times:

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.


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.

Read the entire article. And read the comments. As of this time (12:30 am Pacific), they are chilling.

As an aside, I’m pleased the the NYTimes seems to have developed some backbone post-Snowden.

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  • JSpencer

    with almost no public scrutiny

    Why doesn’t that surprise me.

  • DORIAN DE WIND, Military Affairs Columnist

    I read the article last night. Thanks for posting (some of) it, Kathy.

    This is what I would call, finally, the start of a civil, thoughtful, in-depth debate on an issue we have all been talking about.

  • The_Ohioan

    Like Dorian, I find the missing parts as interesting as those quoted. It appears that everything Mr. Snowden revealed had been revealed before, in 2008 to be accurate. No wonder we all thought we already knew most of this – we did.

    It appears both congress folk and the FISC judges agree that the secrecy level needs to be lowered, but are having trouble (as most of us are) in determining how to do that and still protect against “nuclear proliferation, espionage and cyberattacks”. Perhaps those that are most exercised about the situation can offer some reasonable solutions other than simply eliminating everything done so far.

    It is encouraging to read that:

    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.

    Who knew?

  • DORIAN DE WIND, Military Affairs Columnist

    “It appears both congress folk and the FISC judges agree that the secrecy level needs to be lowered, but are having trouble (as most of us are) in determining how to do that and still protect against “nuclear proliferation, espionage and cyberattacks”. Perhaps those that are most exercised about the situation can offer some reasonable solutions other than simply eliminating everything done so far.”

    I agree, T.O. and — at the risk of being called a “coward” (again) — I still would add “terrorist acts” to the notion that we should find some acceptable, Constitutional, balance between security and privacy when it comes to “nuclear proliferation, espionage and cyberattacks [and terrorist acts].”

    We are a great country and great people. We should be able to do that.

  • petew

    Despite valid questions about violations of the 4th amendment,The_Ohioan, and Dorian are absolutely correct to point out that we live in danger of “nuclear proliferation, espionage and cyberattacks {and terrorist acts}.”

    I think its is obvious that personal privacy needs to be protected, but,we would be fooling ourselves by thinking that some sort of game change isn’t needed in order to protect us against all of the threats we face in this modern world! But necessity is the mother of invention, even when it comes to finding ways to both preserve individual rights, and, provide effective deterrents to terrorists and cyber-attacks. I think eventually a suitable compromise will be reached.

  • sheknows

    Interesting to note that the NSA has been or was instructed to “destroy all other information” back in 2006 by the FISA court, yet as I mentioned before, the previous cases involving Binney and Wiebe stated that is exactly why they are building a new million sq ft facility. All of that information was/is not being destroyed.

    There are many ways to look at this situation. I would be far more inclined to give our government the benefit of the doubt on data collection for our own security, if it had not been for the fact that 1. They missed Boston ( a really big one in my mind since it could have taken out thousands) 2. They have been called on the carpet about his several times before and have ignored all attempts to be more considerate of civilian rights and have in fact created legislation to justify their actions.
    If a discussion would do more than rationalize the NSA’s actions and really examine alternatives, that would be very helpful to all of us here at TMV since we are so divided. Unfortunately, we have no TS clearances to retrieve the information we would need to discuss ALTERNATIVE data collection procedures, and if we did, we couldn’t discuss it. Such is the nature of ANY useful discussion with the govt. about this.

  • Here is my prediction. One day historians will look back on this period and wonder why so many were so acquiescent in the undermining of constitutional liberty. They will, of course, be making the observation from a country other than the USA as such views will no longer be protected.

    Question: does anyone else here perceive that current NSA activity also chills free speech and expression, freedom of religion, freedom of assembly, the right against self incrimination and other once-valued liberties? This is not simply the right to privacy that is at issue. Privacy derives from all the other rights, and they are all being surrendered.

    The Ohioan says, “Perhaps those that are most exercised about the situation can offer some reasonable solutions other than simply eliminating everything done so far.” Please excuse me for disagreeing. Your statement presumes compromising constitutional liberty. I do not accept the necessity or the virtue of making such a compromise. Living in a free and just society entails some risk. Perhaps the question should be what level of risk preserving our freedom is worth.

  • Whenever the subject of NSA’s activities arises, I am strangely reminded of this old quote often attributed to World War II era German Pastor Martin Niemoller:

    First they came for the communists,
    and I didn’t speak out because I wasn’t a communist.

    Then they came for the socialists,
    and I didn’t speak out because I wasn’t a socialist.

    Then they came for the trade unionists,
    and I didn’t speak out because I wasn’t a trade unionist.

    Then they came for the Jews,
    and I didn’t speak out because I wasn’t a Jew.

    Then they came for the Catholics,
    and I didn’t speak out because I wasn’t a Catholic.

    Then they came for me,
    and there was no one left to speak for me.

    I can’t help but wonder if one day there will be a new version that begins “First they came for the Jihadists…”

  • The_Ohioan


    Are you for eliminating everything that NSA has done, then? If wo, what type of attack would you accept as an acceptable risk? Do you have the moral authority to accept that amount of risk for me and everyone else? Or do you think NSA can prevent attacks without checking computer information? Since your computer and/or mine can be used to pull off an attack, I’d be interested in how that would work.

    To shout there is fire in a crowded theater, when there is no fire, is not protected speech. Other constitutional liberties may also therefore be limited. We have a system of government and a branch of government that makes those decisions. No system of government can long function without some curbs on its citizens’ liberty, at least none has so far.

    I feel no compunction about saying anything anytime about our government’s failings, and have done so here and elsewhere. Nor do I see any religious persecution, assembly prevention (Occupy had some problems, but I think ill-trained police rather than NSA was the cause), or self-incrimination (Ms. Lerner is still with us, I think).

    I understand and agree with concerns about what NSA has done so far. If we had no one in authority that was also concerned, I might be more exercised about it. Since our elected representatives and the FISC judges are also concerned I’m willing to let them proceed. If you are not, you can work to elect someone who reflects your opinion; that’s how this freedom stuff works.

  • petew


    I think its very important to ask who the “they” are in Pastor Niemoller quote. Although I wouldn’t call them faultless, I would say that those in charge of the NSA and the American government, are still a far cry from those who populated the Third Reich. Remember, one could also add, “Then they came for the ones who refused to condemn the liberal politicians in the Obama Administration. But I didn’t speak out because I was not a liberal.”

    I don’t think totalitarian governments often just happen by following predictable paths. Tell me if you think Karl Rove, and the Republican scandal machine, aren’t attempting to literally exterminate Obama (by going after his ability to influence our government)? Somehow, I think if radical right-wingers were in control, we would see a lot more secrecy, lies, and power plays favoring the upper .o1%,—who in a sense resemble Hitler, because their financial goals could be characterized as, just another attempt to rule the world.

    Unlike Jihadists, Jews did not make violent strikes on populated places where fundamental Muslims congregate. To me the knowledge that, Jihadists are admittedly out for blood as they pursue a twisted belief in divine glory, makes them much more like Nazis than many other socio-political entities. Sure, throughout history various religions have persecuted “non-believers,” but no sane person can doubt the ugly sins of violent Muslim groups. What happened during the “Crusades,” was also obscene, but,why should previous wrongs be allowed to blind us to the travesty perpetrated by Al Qaeda and the Taliban now? It would be more fitting if one said, “Jihadists, destroyed 3000 innocent American lives on 911, but I did not care, because I was not an innocent American!”

    There is no predictable path for despots who seek to control entire populaces as they gain the world but lose their souls–and deliberately kill millions of others. To reveal them, we often need to look under our own noses, or to question the apparent reality of what only, SEEMS to be obvious.

  • Thanks, all. FYI – I quoted enough that I hoped I would tease you into reading the entire thing. 🙂

    The make-up of the FISA court is unconscionable and it IS a rubber-stamp, for all intents and purposes. <1% objection rate? Give me a break.

    And it’s ALL SECRET. Not just the decisions or which judge made it (remember, one judge sitting at any given time) but the fact they are are making decisions All The Time. How else to you get about 2K orders approved in a year?

  • DORIAN DE WIND, Military Affairs Columnist

    A lot of work to be done, Kathy — without hysteria, without insulting each other and each other’s intelligence and values.

  • For the sake of discussion, let’s look at the history.

    1. Germany’s National Socialist Party [aka fascists or Nazis]was elected by popular vote.

    2. Pastor Niemoller, in the early 30’s, supported the National Socialists and was a particular fan of Adolf Hitler.

    3. Once he changed his mind, he was arrested – in 1937 – years before the regime began its series of invasions and prior to the rest of the world realizing the full extent of Nazi depravity. Niemoller spent 8 years in two concentration camps until he was eventually freed by the allies in 1945.

    The dates are of particular importance because they demonstrate a certain ability on his part to project from early facts.

    For those who think the USA security apparatus is all peaches and cream, I hope you’re right, but I think history teaches otherwise. History teaches that government and government officials amass power; they do not relinquish it. In this context, it can be expected that constitutional liberties, once ceded, will not be recouped.

    I have a question and a suggestion for those willing to compromise liberty in the name of security.

    The question: Where do you draw the line? If the NSA has not yet crossed the line, where is that line? When will you say the government has gone too far…and given the secrecy, how will you know?

    The suggestion: If you wish to take away Americans’ constitutional liberties, kindly do it properly by first proposing to amend the Constitution to allow for the deprivations of freedom that you seek.

    Just my honest point of view, of course.

  • sheknows

    tidbits. The answer to your question is simple. For most Americans,there IS no line. The government can do whatever they feel is necessary to establish “whatever”. I believe surveys have already shown that most Americans think it is alright for the government to do what they want, and they really don’t appreciate whistleblowers and “traitors”. Another small group would respond with “what government surveillance?” and the remaining group already believe we have no rights and are a day away from marshall law.

    The reason I think most people don’t want to discuss this or even know about this is because they already know there is nothing we can do. No one wants to hate their government and love their country and that is what we are having to chose between now unfortunately.

  • sheknows,

    You’re correct. No surprise there [that you would be correct]. I knew the answer when I asked the question…there is no line for those who support the NSA…whatever the government deems necessary is fine.

    We forget so quickly. The intelligence is secret. We can’t risk methods and personnel by sharing actual facts. But believe us, this is what we know from our secret intelligence that we collected for your SECURITY. They are developing weapons of mass destruction; they have mobile WMD units that they move around the desert; they’re buying aluminum tubes suitable only for one purpose, use in centrifuges to enhance nuclear material; they are trying to buy yellow cake uranium from Nigeria; they are best buddies with the 911 terrorists; we have pictures of a 911 terrorist operative in their country.

    Thousands dead and tens of thousands maimed for life. None of it was true. We trusted our government; believed their “necessary secrets” claim; bought the “irrefutable” WMD garbage; believed there was a picture, though it later turned out it wasn’t the person they claimed it was. And thousands died…just the American deaths…maybe more than 100,000 if you include the Iraqi deaths.

    Loving your country does not necessarily mean trusting the government. That’s why constitutional liberties matter. That’s why an informed electorate matters. That’s why blind trust in power-obsessed government operatives, be they elected or appointed, is almost never a good plan. That’s why “SECRET LAWS” are a bad idea in a “democratically” governed society. Think about that oxymoron: a democratic government that has SECRET laws. Really? Welcome to the wonderful world of NSA, FISA Courts and the USA Security Apparatus.

    Just my dumb opinion.

  • The_Ohioan


    I asked first. 🙂

    If you are having trouble coming up with some answers, you are in the same boat as the rest of us who think either changes should be made but are not sure what changes, or else we should be told why changes shouldn’t be made. It is not correct to intimate that anyone thinks everything is “peaches and cream”; If that is your impression of my arguments, I have truly failed to make myself clear.

    Everyone here, including myself, thinks changes should be made. Congress does. The FISC judges do. The President does. Even the public, though they are not too concerned about metadata mining of their phone numbers as long as they don’t listen to their conversations, do want that restriction kept in place unless a warrant is issued. To suggest otherwise is ignoring the facts and weakens any influence on me and maybe on others. Blanket assumptions, those without any nuance whatsoever, and ommitting or misrepresenting facts tend to destroy effective discussion and it is especially difficult for me to keep interest in participating when that happens.

  • sheknows

    I believe most Americans do equate the two, loving your country and trusting it’s government. It is hard to separate. When our government does things like send our troops to Iraq to die under false pretenses, you hate it. When it boards planes of other countries without regard or respect, you feel ashamed of it. When it keeps you in the dark and lies to you about what it’s doing , you are distrustful and angry. It’s like loving an abusive parent.

  • The_Ohioan,

    I answered your question(s), though you may not find the answer satisfactory.

    I do not accept the assumption that constitutional liberties should be compromised. To ask me how I would compromise constitutional liberties to accommodate a “security threat” does not compute. I simply do not accept the assumption that balance or compromise should be part of the discussion. From my perspective, your desire for “security” entails a price, in loss of liberty, that I am unwilling to pay.

    Please try to accept my answer. It is not meant in any disrespect. For you to insist that “balancing” constitutional liberty is the core assumption of the conversation is disrespectful of my position.

    Here is the crux of the matter. You place security above civil liberties. I place civil liberties above security. So long as we order our assumptions in that manner, we can never agree. And, btw, accusing me of “misrepresenting facts” does not lend itself to civil discussion. But, I have been accused of worse. 🙂

    Finally, I sincerely disagree with your assertion that

    Everyone here, including myself, thinks changes should be made. Congress does. The FISC judges do.

    I see no serious evidence to support that assertion.

    Just my dumb opinion. Now, it is my bed time. I am willing to respect your opinion, though I disagree. Will you kindly consider respecting mine?

  • The_Ohioan


    This is the discussion, sans Snowden, that needs to be considered. Although some of those that were complaining about the lack of such are not, yet, participating.

    The Times article, or one of the links, stated that 11 judges, each with a term of 7 years, sits on the FISC. Only 1 actually actually signs a warrant, of course, but my impression is that some or all 11 consider each warrant. I may have read that wrong.

    The FISC is held in secret because they are looking at secret information. Not sure how they could function otherwise and still be effective. One point that is important is that no adversarial representation is present and that would be something that probably should be changed if the secrecy could be maintained. Difficult, but not impossible I would think.

    You may be right that the court is a rubber stamp, or it could be we have some very conscientious people who don’t bring forward information for a warrant without good info. Or it may be a little of both. The court is supposed to require very good info to proceed with issuing a warrant; we have no way of knowing what their criteria are and it would seem that some of those decisions could be declassified, after the fact, so we could make that determination. That seems to be what Sen. Feinstein is after.

    I continue to be perturbed by knee jerk reactions that of course our government is doing terrible things just because that’s what all governments do. How can a people be governed if they are so cynical, rather than skeptical, about their government. Of course, they can’t. If we all indulge in Tea Party conspiracy theories, the government will fall and then we’ll be in for it. A little moderation of expression would not go amiss.

  • The_Ohioan


    I don’t disrespect your opinion, just don’t, yet, understand the basis of it. My questions were directed to your statement:

    Living in a free and just society entails some risk. Perhaps the question should be what level of risk preserving our freedom is worth.

    My question is, or was meant to be, what level of risk do you consider our freedom is worth? Is it worth any risk that comes along? Nothing wrong with that for you, but as you say, for me there are some risks I’m not willing to take. And the reason is a high enough risk could mean all our freedoms could, probably would, be lost in the aftermath anyway. What purpose would that serve?

    My assertions on Congress, FISC, etc. came from the article this thread linked to, or a link from the link. Too late to look it up now. Maybe tomorrow. Bedtime for me, too. BTW I should not have included the “misrepresenting facts” in my comment with your name at the top. Sorry, that was meant for those who do that here. You have not, as far as I know.

  • epiphyte

    Bye for now, everyone. It seems that more often than not my responses are not making it on to the site. I’m used to people responding to my points by talking right past them, but to have them not show up at all is just too frustrating. Maybe you’ll see this, maybe you won’t.

  • sheknows

    epi, the only time comments do not show up is if they are aimed at an individual or are laced with bad language, or are so inflammatory they would provoke an angry mob reaction ( lol)…even then it might get through.

  • Kathy, just wanted to thank you very much for reporting on what is actually important about all this. This is not about Snowden, despite some who wish it to be so. This is about justice, privacy, effectiveness, civil liberties, data protection, and security.

    So thank you. 🙂

  • tidbits, I have been trying to analyse the comments for rational thought rather than opinions. Everyone has a right to their opinions but do not have a right to have those opinions respected. You have said more than once that your opinions are dumb which interests me. Maybe your opinions are biased by emotion which might explain conotational language such as: so acquiescent; undermining of constitutioal liberty; such views will no longer be protected; rights … are all being surrendered. It sounds like the way the t-party thinks which I don’t regard as rational at all. I am not aware of any personal rights that have been taken from me and am not paranoid about big government. The arguments about small vs big government do not concern me as much as effective government. My bias is that corporations, lobyists, and the wealthy are the ones who have more influence in our indirect democracy than most of us, and their influence is aimed at enriching themselves and not improving the general welfare.

  • JSpencer

    My concerns and sentiments are similar to those of Kathy and Elijah. To me this part of a larger trend in which transparency – hence knowledge and dissent are discouraged and respect for privacy is eroded – this in a culture where the citizenry is already more and more disconnected from those making the decisions. It’s about power, control, and of course propaganda.

  • The_Ohioan

    (1) From the NYT – a single judge signs a FISA review.

    (2) From the WSJ – “A single judge reviews a warrant application for electronic surveillance. If denied, the government isn’t allowed go to another judge to shop for a friendlier outcome.”

    (3) From MJ and a lot of other publications – <0.3% of the FISA applications are rejected.

    (4) From NYT and WSJ and a lot of others – the review court is composed of three judges.

    Please read this – it’s even more on point that the NYT piece:

  • DORIAN DE WIND, Military Affairs Columnist

    The Atlantic article, Kathy, is a powerful article. Thank you.

    Since some will immediately identify me a “privacy moderate,” let me just say that, yes, I do believe that we can Constitutionally — not “Constitutionally” as in the interpretation of the Second Amendment — balance (not “compromise”) freedom and security. Now, have at me, but without calling those who disagree with you “cowards.”

  • JSpencer

    Yes indeed, the Atlantic article is a good one. Thanks for posting Kathy.

    Notable quote:

    I am mystified by the “privacy moderate” who yearns for a debate about the surveillance state without anyone being so transgressive as to leak the information without which there would be no debate.

  • DORIAN DE WIND, Military Affairs Columnist

    Good quote, J.S.

    This “privacy moderate” — like you — genuinely yearns for a debate about the surveillance state. The only thing (perhaps) you and I differ on, is that I truly believe that Snowden could have gone either to Republican leaders who would have loved to pin another scandal on Obama, or to Democratic leaders who are genuinely interested in protecting our privacy and freedoms. Any of these powerful men — or women — could have granted the — in this case — whistleblower immunity and protection and the nation would have had a much more effective debate without the distraction of having to deal with the exposure of classified data — information that could truly hurt our liberty and freedoms — to those who mean us harm.

    Just my honest opinion.

  • Dorian, There must be hundreds or thousands of people who know what the NSA does. If it was easy to go to a political leader and get whistleblower immunity, then I would think others would have done that in the past.

  • sheknows

    Just my opinion, but I do not believe Snowden could have gone to any of our leaders here with immunity. The reason is because even he were protected ( momentarily) under the whistleblower, and had all the assurances they could offer, that information would have been as obscured from public awareness as Bradley Manning’s is, or Binney and Weibe’s were. No one really ever heard of those two and no one will remember or know the findings about Manning.
    It is all hush-hush and 20 levels above top secret in this country and much of it classified for no good reason other than hiding misbehavior.

  • Thanks for the link to that GREAT Atlantic article, Kathy. 🙂

  • The_Ohioan

    Thanks Kathy

    1. I also noted that only 1 judge can sign a warrant.

    2. The WSJ link doesn’t work, but I’ll try to get to that article. Tried, just can’t get there.

    3. That was what I was suggesting.

    … That’s a rate of .03 percent, which raises questions about just how much judicial oversight is actually being provided….

    …it’s not quite as simple as the FISC rubber stamping nearly every application the government puts in front of it.

    The reason so many orders are approved, he said, is that the Justice Department office that manages the process vets the applications rigorously… [S]o getting the order approved by the Justice Department lawyers is perhaps the biggest hurdle to approval. “The culture of that office is very reluctant to get a denial,” he [told the Journal]….

    In addition, as I suggested, congress folk and the FISC are discussing declassifying to some degree the FISC’s decisions.

    In February, Sens. Dianne Feinstein (D-Calif.), Jeff Merkley (D-Ore.), Ron Wyden (D-Ore.), and Mark Udall (D-Colo.), wrote a letter to the FISC asking the court to consider releasing portions of its opinions to the public by “writing summaries of its significant interpretations of the law in a manner that separates the classified facts of the application under review from the legal analysis, so as to enable declassification.” After the revelations on the spying programs last week, Sen. Al Franken called the same thing.

    In response to the senators’ letter, the FISA court’s presiding judge, Reggie B. Walton, said in March that it would be very difficult to release summaries of the court’s opinions to the public, because the legal analysis in most opinions is “inextricably intertwined” with classified information.

    Judge Walton also said (selective editing, again, our old nemesis):

    I also recognize the potential benefit of better informing the public about how the FISC applies and interprets FISA – for example, by enhancing public participation in congressional deliberations.

    Here’s the latest from a former FISC judge:

    The Atlantic article seems to be more about Snowden, but I’ll read it all later. Thanks, again.

  • DaGoat

    I would also disagree that Snowden had the option of going to a “leader” in the House or Senate, when leaders such as Wyden have tried to bring this out themselves in the past and have been rebuffed. The whole process is so insular it effectively precludes legal whistleblowing.

  • The_Ohioan


    I’m not sure that Wyden has so much been rebuffed, as he’s been constrained by the penalties that would be exacted for revealing classified information. I can envision 4 or 10 or 26 senators taking to the floor in debate ignoring the classified retrictions. Is the administration going to charge and try all of them at the same time? Unlikely; and probably just a pipe dream.

    I also am dubious that any congressman would have had the courage to protect Mr. Snowden. Maybe a federal judge could have done it. We will never know because he didn’t take that path – as far as we know.

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