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