Did you know that the the secret Foreign Intelligence Surveillance Court (or FISA court) consists entirely of judges appointed by Chief Justice John Roberts without the advice and consent of the Senate? Or that this court’s secret proceedings are invariably ex parte, with the government making its case unopposed before the court (nearly always) grants the government’s requests?
- Wall Street Journal, Secret Court’s Redefinition of “Relevant” Empowered Vast NSA Data Gathering
- New York Times, In Secret, Court Vastly Broadens Powers of N.S.A.
Given the secrecy and lack of adversary proceedings that usually aid the fact-finding mission of courts, NYU law professor Elizabeth Goitein observed in this program, the FISA court is “a flawed institution by design.”
Under the USA Patriot Act, the Wall Street Journal article states “the Federal Bureau of Investigation can require businesses to hand over ‘tangible things,’ including ‘records,’ as long as the FBI shows it is reasonable to believe the things are ‘relevant to an authorized investigation’ into international terrorism or foreign intelligence activities.” Concluding that the FISA court effectively has revised the USA Patriot Act in ways that resulted in the surveillance recently disclosed by former National Security Agency (NSA) contractor Edward Snowden, the article continues:
In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.
In interviews with The Wall Street Journal, current and former administration and congressional officials are shedding new light on the history of the NSA program and the secret legal theory underpinning it. The court’s interpretation of the word enabled the government, under the Patriot Act, to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.