The PJ Tatler

Who is Watching the Watchers?

Eric Lichtblau of the New York Times has a shocking scoop on some of the secret decisions made by the Foreign Intelligence Surveillance Court that would indicate that there has been a fundamental shift in the government’s attitude toward 4th Amendment protections for American citizens.

A secret body of law has been built since 2010 that gives the government vast powers — all perfectly legal — to snoop on American citizens as long as the surveillance is connected to terrorism or some other national security issue.

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.

Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

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.

An “exception” to the Fourth Amendment? Just when were they going to get around to telling us about that? And who died and made the FISA Court SCOTUS?

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

In other words, give government an inch and they take a mile.

The FISA Court rulings have so far never been subject to review by the Supreme Court, largely because there’s only one side to the argument being heard– the government’s.

Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

So, to sum up: A secret court, hearing only one side of the argument, issues secret decisions that changes the meaning of the Fourth Amendment, and the American people are none the wiser.

I’m glad that the government is perfectly content to acquire vast amounts of data about me without a warrant and apparently, without much oversight from a rubber-stamp secret court — a court that has taken it upon itself to supersede the Supreme Court in constitutional matters and carve out an “exception” to Fourth Amendment protections.

Congress is supposed to have oversight over all of this. Aren’t they paying attention?