In Secret, Court Vastly Broadens Powers of #NSA

from In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency
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,
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.

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.” 
While President Obama and his intelligence advisers have spoken of the surveillance programs leaked by Mr. Snowden mainly in terms of combating terrorism,
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
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
“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.
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
. 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

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

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,
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

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
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.’ ”

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