FISCA spelled out is the [United States] Foreign Intelligence Surveillance Court Act. It's an act of Congress signed into law by President Jimmie Carter in 1978. It sets up the FISCA Court to pass on requests for surveillance, mostly by the FBI and the NSA (National Security Agency).
The impetus for doing all this came from a committee headed by then Utah Senator Frank Church, a democrat not known for his trust in the surveillance industry. In fact the committee was born to delve into charges of illegal spying on American citizens by FBI and CIA units. The charges were true. Among the committee's recommendations was FISCA.
Is FISCA a court at all? Opinions differ:
Yes: Members are sitting federal circuit court judges selected by the Chief Justice of the Supreme Court. Its sole function is to review requests for warrants from agencies permitted by law to request them. Only a court can issue warrants under our constitution. Since the judges are drawn from the ranks of sitting Federal Judges who have life time tenure for good behavior at a salary that cannot be reduced while they are in office, they are immune from the cruder forms of pressure. Their adverse decisions can be appealed to a 3-man review court.
No: This court conducts no trials, hears no witnesses, renders no verdicts of guilt or innocence. No defendant comes before the court, innocent until proven guilty, to confront his accusers. No claimant gets his day in court to press for redress of grievance. The session is not a trial, speedy or not, nor is is public. The usual attendees are government lawyers. It is unclear whether or not the court can compel witnesses to appear, or hold the uncooperative in contempt of court. It is unstated - -so far as I could determine -- whether or not judges are compensated.
If it is a court it is highly specialized. So too are Federal bankruptcy courts and the courts that specialize in drug cases or handle family disputes. It is also highly secretive. Virtually none of the details of specific cases are known to the public, and these are highly redacted (edited). Members of Congressional intelligence committees are briefed. All members of Congress may read surveillance requests and subpoenas in a secure room, but given their recent fury over the leak of some wholesale surveillance warrants for domestic phone call meta data few of them took the time.
From the Wikapedia entry: "During the 25 years from 1979–2004, 18,742 warrants were granted, while just four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004."
The flurry of modifications mid way through the Bush first term was probably caused by the court's discovery that the Justice Department was making liberal use of an emergency procedure to approve warrants and tell the court about it later. In some cases the implication was that it was much later -- if ever. Of course those were the days when Al Kaida went from being a bunch of rag heads in the eyes of the Bushies to master terrorists capable of anything. We will probably never know all the sins against the Constitution committed in our name, in the interest of our safety but at a cost to our liberty, in the years following 9/11.
So is FISCA a court or not? In the beginning, yes. Now? It is more fig leaf and rubber stamp. It is unclear whether or not the Church committee envisioned the court approving the wholesale data collections that have come to light (See my blog entry, "Speaking Meta data."). The data handling technology required was not commonplace 35 years ago. At that time this writer was buying data storage for the Department of the Navy at a price for a mere 100,000 bytes that would buy a nice suburban Florida home today, while the physical size of the storage units would fill the spare bedroom and double the cost of air conditioning.
The close scrutiny the FISCA is now getting is thus, on technical grounds alone, well overdue. In its present incarnation it has morphed into just another slightly more benign item in a long list of Bush/Obama era abuses of power in the name of security such as Guantanamo and the bribes that filled it, disregard of treaty obligations, unlawfully torturous interrogations, secret renditions.
and assassinations of American citizens.
Somehow we need to get a challenge to FISCA in front of a real court. Even if you concede -- and I do -- that NSA's data has saved lives, the potential cost to our civil liberties from this precedent is too great. Not only soldiers die in defense of our constitutional rights. Perhaps you, maybe me.
A Wikipedia Entry Exerpt
Since 2009, the Foreign Intelligence Surveillance Court has been located in the E. Barrett Prettyman United States Courthouse in Washington, D.C.[2][3] For roughly thirty years of its history, it was housed on the sixth floor of the Robert F. Kennedy Department of Justice Building.[2][3]
In 2013, a top secret warrant issued by this Court was leaked to the media. That warrant, which ordered Verizon to provide a daily feed of all call detail records – including those for domestic calls – to the National Security Agency, sparked a public outcry of criticism and controversy.
Closed hearings and classified proceedings[edit]
Because of the sensitive nature of its business, the court is a "secret court" – its hearings are closed to the public. While records of the proceedings are kept, they also are unavailable to the public, although copies of some records with classified information redacted have been made public. Due to the classified nature of its proceedings, usually only government attorneys are permitted to appear before the court. Because of the nature of the matters heard before it, court hearings may need to take place at any time of day or night, weekdays or weekends; thus, at least one judge must be "on call" at all times to hear evidence and decide whether or not to issue a warrant.A heavily redacted version of an 2008 appeal by Yahoo of an order issued with respect to NSA's PRISM program had been published for the edification of other potential appellants. The identity of the appellant was declassified in June 2013.[4]
FISA warrants[edit]
Each application for one of these surveillance warrants (called a FISA warrant) is made before an individual judge of the court. The court may allow third parties to submit briefs as amici curiae. When the Attorney General determines that an emergency exists he may authorize the emergency employment of electronic surveillance before obtaining the necessary authorization from the FISC, after which the Attorney General or his designee must notify a judge of the court not more than 72 hours after the Attorney General authorizes such surveillance, as required by 50 U.S.C. § 1805.If an application is denied by one judge of the court, the federal government is not allowed to make the same application to a different judge of the court, but may appeal to the United States Foreign Intelligence Surveillance Court of Review. Such appeals are rare: the first appeal from the FISC to the Court of Review was made in 2002 (In re Sealed Case No. 02-001), 24 years after the founding of the court.
It is also rare for FISA warrant requests to be turned down by the court. During the 25 years from 1979–2004, 18,742 warrants were granted, while just four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four rejected requests were all from 2003, and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few if any were before the year 2000. During the next eight years, from 2004–2012, there were over 15,100 additional warrants granted, with an additional seven being rejected. In all, over the entire 33 year period, the FISA court has granted 33,942 warrants, with only 11 denials – a rejection rate of 0.03% of the total requests.[5]
On December 16, 2005, the New York Times reported that the Bush administration had been conducting surveillance against U.S. citizens without the knowledge of the court since 2002.[8] On December 20, 2005, Judge James Robertson resigned his position with the court, apparently in protest of the secret surveillance.[9] The government's apparent circumvention of the court started prior to the increase in court-ordered modifications to warrant requests.
Criticism[edit]
There has been growing criticism of the court since 9-11. The minimal number of requests that are modified by the court has led experts to characterize it as a rubber stamp. For example, Russell Tice, a former National Security Agency analyst said "It is a kangaroo court with a rubber stamp."[10] The very small percentage of requests that are modified by the court, combined with the statistically-negligible percentage of denied requests (0.03%), has been sharply criticized.[10][11][12][13]2013 NSA controversy[edit]
In June 2013 a copy of a top secret warrant, issued by the FISA court on April 25, 2013, was leaked to British media. That warrant orders Verizon's Business Network Services to provide a daily feed to the National Security Agency containing "telephony metadata" – comprehensive call detail records, including location data – about all calls in its system, including those that occur "wholly within the United States, including local telephone calls":[14]This document acted as a "smoking gun" and sparked a public outcry of criticism and complaints[15][16] that the Court exceeded its authority and violated the Fourth Amendment by issuing general warrants.[17] The Washington Post then reported that it knew of other orders, and that the court had been issuing such orders, to all telcos, every three months since May 24, 2006. [18] Subsequent to the media disclosures, the Obama Administration revealed that the records of all phone companies had been collected by the NSA since 2006, with oversight from Congress and the FISA court.[citation needed]"This Court having found that the Application of the Federal Bureau of Investigation (FBI)... satisfies the requirements of 50 U.S.C. § 1861, "IT IS HEREBY ORDERED that, the Custodian of Records shall produce to the National Security Agency (NSA) upon service of this Order, and continue production on an ongoing daily basis thereafter for the duration of this Order, unless ordered by the Court, an electronic copy of the following tangible things: all call detail records or "telephony metadata" created by Verizon for communications (i) between the United States and abroad; or (ii) wholly within the United States, including local telephone calls....
"Telephony metadata includes comprehensive communications routing information, including but not limited to session identifying information (e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, International Mobile station Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call. Telephony metadata does not include the substantive content of any communication, as defined by , or the name, address, or financial information of a subscriber or customer." (emphasis added)—Judge Roger Vinson, Foreign Intelligence Surveillance Court[14]
Marc Rotenberg, executive director of the Electronic Privacy Information Center, challenged the Administration's "oversight" claims, saying that:
Former Vice President Al Gore was also sharply critical, both of the practice and of the Obama Administration's stance on the topic:"The FISA system is broken. At the point that a FISA judge can compel the disclosure of millions of phone records of U.S. citizens engaged in only domestic communications, unrelated to the collection of foreign intelligence... there is no longer meaningful judicial review."[5]
"I quite understand the viewpoint that many have expressed that they are fine with it and they just want to be safe, but that is not really the American way. Benjamin Franklin famously wrote that 'those who would give up essential liberty to try to gain some temporary safety, deserve neither liberty nor safety.'... This in my view violates the Constitution, the Fourth Amendment and the First Amendment – and the Fourth Amendment language is crystal clear.... It is not acceptable to have a secret interpretation of a law that goes far beyond any reasonable reading of either the law or the Constitution, and then classify as top secret what the actual law is.... This is not right.... I think that the Congress and the Administration need to make some changes in the law and in their behavior so as to honor and obey the Constitution of the United States. It is that simple."[17]
Composition[edit]
When the court was founded, it was composed of seven federal district judges appointed by the Chief Justice of the United States, each serving a seven-year term, with one judge being appointed each year. In 2001, the USA PATRIOT Act expanded the court from seven to eleven judges, and required that at least three of the Court's judges live within twenty miles (32 km) of the District of Columbia. No judge may be appointed to this court more than once, and no judge may be appointed to both the Court of Review and the FISA court.Current membership[edit]
| Judge[19] | Judicial district | Date appointed | Term expiry |
|---|---|---|---|
| Reggie Walton (presiding) | District of Columbia | May 19, 2007 | May 18, 2014 |
| Rosemary M. Collyer | District of Columbia | March 8, 2013 | March 7, 2020 |
| Raymond J. Dearie | Eastern District of New York | July 2, 2012 | July 1, 2019 |
| Claire Eagan | Northern District of Oklahoma | February 13, 2013 | May 18, 2019 |
| Martin L.C. Feldman | Eastern District of Louisiana | May 19, 2010 | May 18, 2017 |
| Thomas Hogan | District of Columbia | May 18, 2009 | May 18, 2016 |
| Mary A. McLaughlin | Eastern District of Pennsylvania | May 18, 2008 | May 18, 2015 |
| Michael W. Mosman | District of Oregon | May 4, 2013 | May 3, 2020 |
| F. Dennis Saylor IV | District of Massachusetts | May 19, 2011 | May 18, 2018 |
| Susan Webber Wright | Eastern District of Arkansas | May 18, 2009 | May 18, 2016 |
| James Zagel | Northern District of Illinois | May 18, 2008 | May 18, 2015 |
Former membership[edit]
- This list is incomplete; you can help by expanding it.
See also[edit]
- Operation CHAOS
- PRISM (surveillance program)
- National Security Agency
- NSA call database
- NSA warrantless surveillance (2001–07)
- In re Sealed Case No. 02-001
- Commission nationale de contrôle des interceptions de sécurité
Notes[edit]
- ^ Cohen, David; John Wells (April 17, 2004). American National Security and Civil Liberties in an Era of Terrorism. Palgrave. ISBN 1-4039-6199-9. p. 34
- ^ a b Wilber, Del Quentin (March 2, 2009). "Surveillance Court Quietly Moving". The Washington Post. Retrieved June 24, 2013.
- ^ a b Leonnig, Carol; Ellen Nakashima, Barton Gellman (June 29, 2013). "Secret-court judges upset at portrayal of ‘collaboration’ with government". The Washington Post. p. 2. Retrieved June 30, 2013. "For about 30 years, the court was located on the sixth floor of the Justice Department’s headquarters, down the hall from the officials who would argue in front of it. (The court moved to the District’s federal courthouse in 2009.)"
- ^ Claire Cain Miller; Nicole Perlroth (June 28, 2013). "Secret Court Declassifies Yahoo’s Role in Disclosure Fight". The New York Times. Retrieved June 29, 2013.
- ^ a b Evan, Perez (9 June 2013). "Secret Court's Oversight Gets Scrutiny". Wall Street Journal. Retrieved 20 June 2013.
- ^ "Foreign Intelligence Surveillance Act Court Orders 1979-2012". Electronic Privacy Information Center. Retrieved 20 June 2013.
- ^ Shenon, Philip (August 23, 2002). "Secret court says F.B.I. aides misled judges in 75 cases". The New York Times. Retrieved November 20, 2011.
- ^ Bush Lets U.S. Spy on Callers Without Courts, New York Times, December 16, 2005 – mirror
- ^ Spy Court Judge Quits In Protest: Jurist Concerned Bush Order Tainted Work of Secret Panel, Washington Post, December 21, 2005
- ^ a b "Fisa chief judge defends integrity of court over Verizon records collection". June 6, 2013. Retrieved June 7, 2013.
- ^ "Foreign Intelligence Surveillance Act Court Orders 1979–2011". Retrieved June 7, 2013.
- ^ "The bad joke called 'the FISA court' shows how a 'drone court' would work". May 3, 2013. Retrieved June 7, 2013.
- ^ "Toobin: Bush on 'questionable legal footing'". December 19, 2005. Retrieved June 7, 2013.
- ^ a b Vinson, Judge Roger (April 25, 2013). "In re Application of the Federal Bureau of Investigation for an Order Requiring the production of tangible things from Verizon Business Network Services, Inc. on behalf of MCI Communication Services, Inc. d/b/a Verizon Business Services" (PDF). Top Secret order of the Foreign Intelligence Surveillance Court. Electronic Privacy Information Center. Retrieved 20 June 2013.
- ^ Greenwald, Glenn (June 5, 2013). "NSA collecting phone records of millions of Americans daily". The Guardian. Retrieved June 6, 2013.
- ^ Savage, Charlie; Wyatt, Edward (5 June 2013). "U.S. Is Secretly Collecting Records of Verizon Calls". The New York Times. Retrieved 6 June 2013.
- ^ a b Goldenberg, Suzanne (June 14, 2013). "Al Gore: NSA's secret surveillance program 'not really the American way'". The Guardian. Retrieved 20 June 2013.
- ^ "U.S. surveillance architecture includes collection of revealing Internet, phone metadata".
- ^ "2013 Membership". Federation of American Scientists. Retrieved 20 June 2013.
References[edit]
- "Foreign Intelligence Surveillance Court 2007 Membership". from the Federation of American Scientists. Retrieved May 24, 2007.
- "Judge Walton Named to Foreign Intel Surveillance Court". from Secrecy News. Retrieved May 24, 2007.
- "Chief Justice Rehnquist's Appointments to the FISA Court: an Empirical Perspective". Retrieved February 13, 2011.
- "Judge John D. Bates Appointed to the FISA Court". from Secrecy News. Retrieved March 24, 2006.
- "New FISA Court Judge Appointed". from Secrecy News. Retrieved May 24, 2006.
- Lichtblau, Eric (March 29, 2006). "Judges on Secretive Panel Speak Out on Spy Program". New York Times. Retrieved March 29, 2006.
- "Big Brother is Listening" by James Bamford, Atlantic Monthly, April 2006.
- Diamond, John (December 18, 2005). "NSA's surveillance of citizens echoes 1970s controversy". USA Today. Retrieved December 18, 2005.
- Ashcroft, John (2001). "(Untitled DOJ memo summarizing FISA applications for calendar year 2000)". Retrieved December 17, 2005.
No comments:
Post a Comment