[Vision2020] In Secret, Court Vastly Broadens Powers of N.S.A.

[Art Deco]

  [image: The New York Times] <http://www.nytimes.com/>

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July 6, 2013
In Secret, Court Vastly Broadens Powers of N.S.A. By ERIC
LICHTBLAU<http://topics.nytimes.com/top/reference/timestopics/people/l/eric_lichtblau/index.html>

WASHINGTON — In more than a dozen classified rulings, the nation’s
surveillance court has created a secret body of law giving the National
Security Agency<http://topics.nytimes.com/top/reference/timestopics/organizations/n/national_security_agency/index.html?inline=nyt-org>the
power to amass vast collections of data on Americans while pursuing
not
only terrorism suspects, but also people possibly involved in nuclear
proliferation, espionage and cyberattacks, officials say.

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<http://www.nytimes.com/2007/01/17/washington/18spycnd.html>,
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<http://www.nytimes.com/2013/06/06/us/us-secretly-collecting-logs-of-business-calls.html>.
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.

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 <http://cisat.syr.edu/fellow/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.”

While President Obama and his intelligence advisers have spoken of the
surveillance programs leaked by Mr. Snowden mainly in terms of combating
terrorism<http://www.nytimes.com/2013/06/29/us/politics/after-leaks-obama-leads-damage-control-effort.html?pagewanted=all>,
the court has also interpreted the law in ways that extend into other
national security concerns. In one recent case, for instance, intelligence
officials were able to get access to an e-mail attachment sent within the
United States because they said they were worried that the e-mail contained
a schematic drawing or a diagram possibly connected to Iran’s nuclear
program<http://topics.nytimes.com/top/news/international/countriesandterritories/iran/nuclear_program/index.html?inline=nyt-classifier>.


In the past, that probably would have required a court warrant because the
suspicious e-mail involved American communications. In this case, however,
a little-noticed provision in a 2008 law, expanding the definition of
“foreign intelligence” to include “weapons of mass destruction,” was used
to justify access to the message.

The court’s use of that language has allowed intelligence officials to get
wider access to data and communications that they believe may be linked to
nuclear proliferation, the officials said. They added that other secret
findings had eased access to data on espionage, cyberattacks and other
possible threats connected to foreign intelligence.

“The definition of ‘foreign intelligence’ is very broad,” another former
intelligence official said in an interview. “An espionage target, a nuclear
proliferation target, that all falls within FISA, and the court has signed
off on that.”

The official, like a half-dozen other current and former national security
officials, discussed the court’s rulings and the general trends they have
established on the condition of anonymity because they are classified.
Judges on the FISA court refused to comment on the scope and volume of
their decisions.

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<http://www.nytimes.com/2009/01/15/world/americas/15iht-15fisa.19390748.html>.
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.

Created by Congress in 1978 as a check against wiretapping abuses by the
government, the court meets in a secure, nondescript room in the federal
courthouse in Washington. 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.

Beyond broader legal rulings, the judges have had to resolve questions
about newer types of technology, like video conferencing, and how and when
the government can get access to them, the officials said.

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.

The officials said one central concept connects a number of the court’s
opinions. The judges have concluded that the mere collection of enormous
volumes of “metadata” — facts like the time of phone calls and the numbers
dialed, but not the content of conversations — does not violate the Fourth
Amendment, as long as the government establishes a valid reason under
national security regulations before taking the next step of actually
examining the contents of an American’s communications.

This concept is rooted partly in the “special needs” provision the court
has embraced. “The basic idea is that it’s O.K. to create this huge pond of
data,” a third official said, “but you have to establish a reason to stick
your pole in the water and start fishing.”

Under the new procedures passed by Congress in 2008 in the FISA Amendments
Act, even the collection of metadata must be considered “relevant” to a
terrorism investigation or other intelligence activities.

The court has indicated that while individual pieces of data may not appear
“relevant” to a terrorism investigation, the total picture that the bits of
data create may in fact be relevant, according to the officials with
knowledge of the decisions.

Geoffrey R. Stone <http://www.law.uchicago.edu/faculty/stone-g/>, a
professor of constitutional law at the University of Chicago, said he was
troubled by the idea that the court is creating a significant body of law
without hearing from anyone outside the government, forgoing the
adversarial system that is a staple of the American justice system. “That
whole notion is missing in this process,” he said.

The FISA judges have bristled at criticism that they are a rubber stamp for
the government, occasionally speaking out to say they apply rigor in their
scrutiny of government requests. Most of the surveillance operations
involve the N.S.A., an eavesdropping behemoth that has listening posts
around the world. Its role in gathering intelligence within the United
States has grown enormously since the Sept. 11 attacks.

Soon after, President George W. Bush, under a secret wiretapping program
that circumvented the FISA court, authorized the N.S.A. to collect metadata
and in some cases listen in on foreign calls to or from the United States.
After a heated debate, the essential elements of the Bush program were put
into law by Congress in 2007, but with greater involvement by the FISA
court.

Even before the leaks by Mr. Snowden, members of Congress and civil
liberties advocates had been pressing for declassifying and publicly
releasing court decisions, perhaps in summary form.

Reggie B. Walton, the FISA court’s presiding judge, wrote in March that he
recognized the “potential benefit of better informing the
public<http://www.fas.org/irp/agency/doj/fisa/fisc-032713.pdf>”
about the court’s decisions. But, he said, there are “serious obstacles” to
doing so because of the potential for misunderstanding caused by omitting
classified details.

Gen. Keith B. Alexander, the N.S.A. director, was noncommital when he was
pressed at a Senate hearing in June to put out some version of the court’s
decisions.

While he pledged to try to make more decisions public, he said, “I don’t
want to jeopardize the security of Americans by making a mistake in saying,
‘Yes, we’re going to do all that.’ ”


-- 
Art Deco (Wayne A. Fox)
art.deco.studios at gmail.com
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