All posts tagged ‘FISA’

High Court to Hear Warrantless Eavesdropping Challenge

The "secret room" in AT&T's Folsom Street office in San Francisco is believed to be one of several internet wiretapping facilities at AT&T offices around the country feeding data to the National Security Agency without warrants. Photo: Mark Klein

The Supreme Court agreed Monday to decide whether to halt a legal challenge to a once-secret warrantless surveillance program targeting Americans’ communications that Congress eventually legalized in 2008.

The announcement is a win for the Obama administration, which like its predecessor, argues that government wiretapping programs and laws can’t be challenged in court.

At issue is the FISA Amendments Act, (.pdf) the subject of lawsuit brought by the American Civil Liberties Union and others, that authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”

That bill was signed into law in July 2008, and the ACLU filed suit immediately. Then-senator and presidential candidate Barack Obama voted for the measure, though he said the bill was flawed and that he would push to amend it if elected. Instead, Obama, as president, simply continued the Bush administration’s legal tactics aimed at crushing any judicial scrutiny of the wiretapping program.

After a surprise appellate court decision last year that reinstated the ACLU’s challenge, the Obama administration asked the Supreme Court to overturn the decision. The government said the ACLU and a host of other groups don’t have the legal standing to bring the case because they have no evidence they or their overseas clients are being targeted.

Without comment, the justices agreed to review the lower court’s decision at a yet-to-be determined date. It marks the first time the Supreme Court has agreed to review any case touching on the eavesdropping program that was secretly employed in the wake of 9/11 by the Bush administration, and eventually largely codified into law four years ago.

A lower court ruled the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and other plaintiffs did not have standing to bring the case, because they could not demonstrate that they were subject to the eavesdropping.

The groups appealed to the 2nd U.S. Circuit Court of Appeals, arguing that they often work with overseas dissidents who might be targets of the National Security Agency program. Instead of speaking with those people on the phone or through e-mails, the groups asserted that they have had to make expensive overseas trips in a bid to maintain attorney-client confidentiality.

The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights.

Without ruling on the merits of the case, the appeals court agreed with the plaintiffs last year that they have ample reason to fear the surveillance program, and thus have legal standing to pursue their claim.

The Obama administration disagreed.

“Respondents’ inability to show an imminent interception of their communications cannot be cured by the asserted chilling effect resulting from their fear of such surveillance,” the government wrote (.pdf) the Supreme Court in a petition.

But even if the Supreme Court sides with the ACLU, that does not necessarily mean the constitutionality of the FISA Amendments Act would be litigated.

The lawsuit would return to the courtroom of U.S. District Court Judge John G. Koeltl in New York, where, if past is prologue, the Obama administration likely would play its trump card: an assertion of the powerful state secrets privilege that lets the executive branch effectively kill lawsuits by claiming they threaten to expose national security secrets.

The courts tend to defer to such claims. But in a rare exception in 2008, a San Francisco federal judge refused to throw out a wiretapping lawsuit against AT&T under the state secrets privilege. The AT&T lawsuit was later killed anyway, because the FISA Amendments Act also granted the phone companies retroactive legal immunity for their alleged participation in the NSA spying program.

The FISA Amendments Act generally requires the Foreign Intelligence Surveillance Act Court to rubber-stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application.

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Senators Demand DOJ Release Secret Spy Court Rulings

Photo: Urban Don/Flickr

Two Democratic senators urged the Obama administration Thursday to declassify secret court rulings that give the government far wider domestic spying powers under the Patriot Act than intended.

The 10-year-old measure, hastily adopted in the wake of the 2001 terror attacks, grants the government broad surveillance powers with little oversight that can be used domestically.

While much has been written and debated about the bill’s powers and efficacy, there’s evidently much more going on than the public knows.

A secret tribunal known as the Foreign Intelligence Surveillance Act Court has issued classified rulings about the Patriot Act that U.S. Senator Ron Wyden (D-Oregon) and Sen. Mark Udall (D-Colorado) say expand the government’s surveillance powers even more.

Sen. Ron Wyden. Photo: Courtesy Sen. Wyden

At issue, the lawmakers said, is section 215 of the Patriot Act. The sweeping power, one of the most controversial in the law, allows the secret FISA court to authorize broad warrants for most any type of record, including those held by banks, internet companies, libraries and doctors. The government does not have to show a connection between the items sought under a section 215 warrant and a suspected terrorist or spy: the authorities must assert the documents would be relevant to an investigation. Those who receive such an order are not allowed to tell anyone, ever, that such records were requested.

The senators, in a letter to Attorney General Eric Holder, wrote:

“We believe most Americans would be stunned to learn the details of how these secret court opinions have interpreted section 215 of the Patriot Act. As we see it, there is now a significant gap between what most Americans think the law allows and what the government secretly claims the law allows. This is a problem, because it is impossible to have an informed public debate about what the law should say when the public doesn’t know what its government thinks the law says.”

The senators know of the classified rulings and accompanying legal interpretations because the government briefed some members of intelligence committees in February, 2011.

But the government has no plans to declassify and publicize the opinions and the interpretations of them.

The administration claims “disclosure could be expected to cause exceptionally grave damage to the national security of the United States,” Arnetta Mallory, the Justice Department’s declassification director, said in court filing (.pdf) weeks ago in an attempt to beat back Freedom of Information Act lawsuits brought by the American Civil Liberties Union and The New York Times.

Mallory added:

The withheld material contains specific descriptions of the manner and means by which the United States government acquires tangible things for certain authorized investigations pursuant to Section 215. As such, the withheld information describes highly sensitive intelligence activities, sources and methods. Disclosure of this information would provide our adversaries and foreign intelligence targets with insight into the United States government’s foreign intelligence collection capabilities, which in turn could be used to develop the means to degrade and evade those collection capabilities.

The senators’ two-page letter blasts the government’s position in the FOIA cases, saying its reasoning amounts to a “chilling” argument to classify all federal surveillance law.

Sen. Mark Udall. Photo: Wikipedia

“The crux of the Justice Department’s argument for keeping the official interpretation of the law secret is that this secrecy prevents U.S. adversaries from understanding exactly what intelligence agencies are allowed to do. We can see how tempting to latch on to this chilling logic, but we would know that it would then follow that all of America’s surveillance laws should be secret, because that would make it even harder to guess how the United States government collects information.”

The FISA court, set up in 1978, issues warrants for domestic surveillance that are unlike the warrants issued in criminal investigations. The secret court warrants, under the authority of the Foreign Intelligence Surveillance Act, grant the government broad authority to secretly monitor the electronic communications of persons in the United States, generally for intelligence purposes only.

The targets of a FISA warrant may never learn of the surveillance, whereas subjects of criminal eavesdropping warrants are informed of the tap eventually and may challenge the warrants and the evidence gathered if it is used in a criminal prosecution.

Meanwhile, the secret court approved all 1,506 government requests to electronically monitor suspected “agents” of a foreign power or terrorists on U.S. soil in 2010, according to the latest Justice Department report released under the Freedom of Information Act.

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Lawmakers Punt Again on Patriot Act Reform

It’s Groundhog Day again, at least insofar as Patriot Act reform is concerned.

Despite repeated promises, federal lawmakers are again punting on revising the controversial spy act adopted in the wake of the Sept. 11, 2001, terror attacks. Congress is set to extend three expiring Patriot Act spy provisions for four years, without debate. They were set to expire at month’s end.

Here are the three provisions at issue:

• The “roving wiretap” provision allows the FBI to obtain wiretaps from a secret intelligence court, known as the FISA court (under the Foreign Intelligence Surveillance Act), without identifying the target or what method of communication is to be tapped.

• The “lone wolf” measure allows FISA court warrants for the electronic monitoring of a person for any reason — even without showing that the suspect is an agent of a foreign power or a terrorist. The government has said it has never invoked that provision, but the Obama administration said it wanted to retain the authority to do so.

• The “business records” provision allows FISA court warrants for any type of record, from banking to library to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation.

The expiring measures originally were set to sunset in December 2009. Congress extended the deadline until the end of February 2010 in a bid to work out compromise legislation. When that failed, lawmakers punted for a year. Then in February of this year, Congress declared that those measures would expire at the end of this month unless new action was taken.

Now lawmakers are taking the long view, and extending the provisions to June 1, 2015.

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Domestic Surveillance Court Approved All 1,506 Warrant Applications in 2010

The secretive Foreign Intelligence Surveillance Court approved all 1,506 government requests to electronically monitor suspected “agents” of a foreign power or terrorists on U.S. soil last year, according to a Justice Department report released under the Freedom of Information Act.

The two-page report, which shows about a 13 percent increase in the number of applications for electronic surveillance between 2009 and 2010, was obtained by the Federation of American Scientists and published Friday.

“The FISC did not deny any applications in whole, or in part,” according to the April 19 report to Sen. Majority Leader Harry Reid (D-Nevada).

The 11-member court denied two of 1,329 applications for domestic-intelligence surveillance in 2009. The FBI is the primary agency making those requests.

Whether the FISA court, whose business is conducted behind closed doors, is rubber-stamping the requests is a matter of debate.

“That’s been a traditional concern that the court might have become a rubber stamp and that it’s approval is only a formality,” Steven Aftergood, the director of the Project on Government Secrecy for the Federation of American Scientists, said by telephone. “The government’s argument, and it’s also an argument that has been made occasionally by the judges, is in fact the Justice Department has grasped the court’s expectations so well that the only applications they submit to the court are ones that are likely to meet its approval.”

The court, set up in 1978, issues warrants for domestic surveillance that are unlike the warrants issued in criminal investigations. The secret court warrants, under the authority of the Foreign Intelligence Surveillance Act, grant the government broad authority to secretly monitor the electronic communications of persons in the United States, generally for intelligence purposes only.

The targets of a FISA warrant may never learn of the surveillance. Whereas subjects of non-FISA warrants may challenge the warrants and the evidence gathered if it is used in a criminal prosecution.

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Appeals Court Revives Lawsuit Challenging NSA Surveillance of Americans

It’s easy to forget these days, but former President George W. Bush’s illegal warrantless surveillance program was never halted by Congress, nor by the Obama administration. It was merely legalized in a 2008 law called the FISA Amendments Act. That means the surveillance of Americans’ international phone calls and internet use — complete with secret rooms in AT&T data centers around the country — is likely still ongoing.

On Monday, a federal appeals court reinstated a key legal challenge to that surveillance: a lawsuit filed by the ACLU and others within hours of the FISA Amendments Act (.pdf) being signed into law. The lawsuit attacks the constitutionality of the legislation, which allows the government to electronically eavesdrop on Americans without a probable-cause warrant, so long as one of the parties to the communication resides outside the United States, and is suspected of a link to terrorism.

The decision by the 2nd U.S. Circuit Court of Appeals means the ACLU, and other rights groups involved in the suit, might get their day in court. “This is a really big victory,” said ACLU spokeswoman Rachel Myers. “The ruling is that you don’t have to prove you’ve been spied on to challenge an unlawful spy act.”

The "secret room" in AT&T's Folsom Street office in San Francisco is believed to be one of several internet wiretapping facilities at AT&T offices around the country feeding data to the NSA. (Photo: Mark Klein)

A lower court had ruled the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and other plaintiffs did not have standing to bring the case, because they could not demonstrate that they were subject to the eavesdropping.

The groups appealed, arguing that they often work with overseas dissidents who might be targets of the National Security Agency program. Instead of speaking with those people on the phone or through e-mails, the groups asserted that they have had to make expensive overseas trips in a bid to maintain attorney-client confidentiality.

The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights.

Without ruling on the merits of the case, the appeals court on Monday agreed with the plaintiffs that they have ample reason to fear the surveillance program, and thus have legal standing to pursue their claim. From the ruling:

[T] plaintiffs have good reason to believe that their communications in particular, will fall within the scope of the broad surveillance that they can assume the government will conduct. The plaintiffs testify that in order to carry out their jobs they must regularly communicate by telephone and e-mail with precisely the sorts of individuals that the government will most likely seek to monitor — i.e., individuals “the U.S. government believes or believed to be associated with terrorist organizations,” “political and human rights activists who oppose governments that are supported economically or militarily by the U.S. government,” and “people located in geographical areas that are a special focus of the U.S. government’s counterterrorism or diplomatic efforts.” The plaintiffs’ assessment that these individuals are likely targets of [FISA Amendments Act] surveillance is reasonable, and the government has not disputed that assertion.

The case will now return to the courtroom of U.S. District Court Judge John G. Koeltl in New York, where, if past is prologue, the Obama administration will play its trump card: an assertion of the powerful State Secrets Privilege that lets the executive branch effectively kill lawsuits by claiming they threaten to expose national security secrets.

“State secrets could definitely come into it,” Myers said.

The courts tend to defer to such claims. But in a rare exception in 2008, a San Francisco federal judge refused to throw out a wiretapping lawsuit against AT&T under the State Secrets Privilege. The AT&T lawsuit was later killed anyway, because the same FISA Amendments Act also granted the phone companies retroactive legal immunity for their participation in the NSA program. That immunity does not apply to the government.

The FISA Amendments Act — which passed with the support of then-senator Obama — generally requires the Foreign Intelligence Surveillance Act Court to rubber-stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appellate process in a rare instance of rejection by the secret FISA court.

Top photo: National Security Agency building in Fort Meade, Maryland

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