Newly released data show that the government submitted 1,789 eavesdropping requests last year, and none was rejected
guardian.co.uk, Friday 3 May 2013 11.28 EDT
In the mid-1970s, an investigation by the US Senate, conducted by the Church Committee, uncovered decades of serious, systemic abuse by the US government of its eavesdropping powers: listening in on the telephone calls of civil rights leaders, reading the mail of political opponents, spying on anti-war groups. The supposed lesson learned from this was that political leaders will inevitably abuse their surveillancepowers if they are permitted to exercise them in the dark and without meaningful oversight. The "solution" was the enactment of a law - the 1978 Foreign Intelligence Surveillance Act (Fisa) - that made it a criminal offense for government officials to eavesdrop on the electronic communications of Americans without first obtaining a warrant from the newly created Fisa court.
From the start, the Fisa court was a radical perversion of the judicial process. It convened in total secrecy and its rulings were classified. The standard the government had to meet was not the traditional "probable cause" burden imposed by the Fourth Amendment but a significantly diluted standard. There was nothing adversarial about the proceeding: only the Justice Department (DOJ) was permitted to be present, but not any lawyers for the targets of the eavesdropping request, who were not notified. Reflecting its utter lack of real independence, the court itself was housed in the DOJ.
And, and was totally predictable, the court barely ever rejected a government request for eavesdropping. From its inception, it was the ultimate rubber-stamp court, having rejected a total of zero government applications - zero - in its first 24 years of existence, while approving many thousands. In its total 34 year history - from 1978 through 2012 - the Fisa court has rejected a grand total of 11 government applications, while approving more than 20,000.
Despite how obedient and compliant this court always was, the Bush administration decided in late 2001 that it would have its National Security Agency (NSA) intercept the calls and emails of Americans without bothering to obtain the Fisa court approval required by the criminal law, claiming - with a straight face - that complying with the law was "too cumbersome" in the age of Terrorism. Once this lawbreaking was revealed by the New York Times in late 2005, the response from the DC political class was not to punish the responsible government officials for their lawbreaking, but rather to enact a new law (called the Fisa Amendments Act of 2008) that, in essence, simply legalized the warrantless eavesdropping scheme of the Bush administration.
That new Fisa law vested vast new surveillance powers in the US government to spy on the communications of Americans without the annoyance of obtaining permission from the Fisa court. It requires warrants from the Fisa court only in the narrowest of circumstances: the ones most susceptible to abuse. Although candidate Obama pretended to have serious concerns about the law (when he voted for it) and vowed to rein in its excesses, his administration last year demanded the renewal of this law with no reforms, and Congress, on a fully bipartisan basis, complied.
One of the provisions of the new Fisa law requires the DOJ annually to disclose to Congress the number of eavesdropping applications it files and the number approved and rejected by the Fisa court. Earlier this week, that disclosure was provided to Senate Majority Leader Harry Reid for the year 2012, and this is what it reported:
Let's repeat that: "of 1,789 applications, the FISA court did not deny any applications in whole or in part." What fantastic oversight (1789 is, ironically, the year the Constitution was ratified). The court did "modify" 40 of those applications - less than 3% - but it approved every single one. The same was true of 2011, when the DOJ submitted 1,676 applications and the Fisa court, while modifying 30, "did not deny any applications in whole, or in part".
What makes all of this worse is just how extreme the US government is "interpreting" - i.e. distorting - its eavesdropping powers under the law. Two Democratic Senators, Ron Wyden and Mark Udall, have beenwarning for years that the Obama administration is exploiting these laws in ways far beyond what the public knows or what a reasonable reading of the laws would permit. One of the nation's most knowledgeable surveillance experts, Julian Sanchez, has documented - citing the writing of a former Obama lawyer - documented that the law is used to target even "an American citizen located within the United States, and no court or judge is required to approve or review the choice of which individuals to tap": exactly the type of warrantless surveillance we were all told this law would prohibit. And yet, the Fisa court - even for those narrow set of cases where a warrant is required - continues as it always has: rubber-stamping virtually anything and everything the government wants to do.
There are many reasons that explain this judicial obeisance. Part of it is fear and abdication of duty: no federal judge wants to be the one who rejects a surveillance request from the government only to have the target perpetrate an attack, even though federal judges are immunized with life tenure from such political pressures so that they can apply the law and provide a real check on government conduct. Part of it is nationalistic delirium: federal courts in general have been disgracefully subservient to the Executive Branch every time they utter the word "Terrorism" since 9/11. And part of it is just the nature of persuasion: even the most mediocre lawyers can convince someone of almost anything if they have no opposition and can unilaterally select and depict all facts without challenge. The entire process, though depicted as some kind of check on Executive Branch behavior, is virtually designed to do the opposite: ensure the Government's surveillance desires are unimpeded. These shockingly lopsided statistics attest to the success of this design.
This is significant not only because it means there is no real check on the government's surveillance power, even as they exercise those powers in much broader ways than most people suspect. It's also significant in light of recent calls that a "drone court" be created that would provide for a similar process for the president's desire to target for execution people who have been charged with no crime. The New York Times Editorial Page has been advocating this for years.
The rationale offered is the same as what was used to justify the Fisa court: the President needs some check on who he targets, but requiring that he charge the person he wants to kill with a crime and convict them in a real court is too cumbersome. Therefore, this reasoning goes, a "drone court" modeled on the Fisa court is the happy medium: he'll have some constraints on his power to kill whomever he wants, but its secretive, one-sided process and lowered levels of required proof will ensure the necessary agility and flexibility he needs as Commander-in-Chief. As the NYT Editors put it: the drone court "would be an analogue" to the Fisa court whereby: "If the administration has evidence that a suspect is a terrorist threat to the United States, it would have to present that evidence in secret to a court before the suspect is placed on a kill list."
But does anyone believe that a "drone court" would be any less of a mindless rubber-stamp than the Fisa court already is? Except for a handful of brave judges who take seriously their constitutionally assigned role of independence, the vast majority of federal judges are far too craven to tell the president that he has not submitted sufficient proof that would allow him to kill someone he claims is a Terrorist. The fact that it would all take place in secret, with only the DOJ present, further ensures that the results would mirror the embarrassing subservience of the Fisa court. As former Pentagon chief counsel Jeh Johnson put it in a speech last month discussing this proposal:
"Its proceedings would necessarily be ex parte and in secret, and, like a FISA court, I suspect almost all of the government's applications would be granted, because, like a FISA application, the government would be sure to present a compelling case. So, at the same time the New York Times editorial page promotes a FISA-like court for targeted lethal force, it derides the FISA court as a 'rubber stamp' because it almost never rejects an application. How long before a 'drone court' operating in secret is criticized in the same way?"
Precisely. But like the Fisa court, such a "drone court" would be far worse than merely harmless. Just imagine how creepy and tyrannical it is to codify a system where federal judges - in total secrecy and with only government lawyers present - issue execution warrants that allow the president to kill someone who has never been charged with a crime. It's true that the president is already doing this, and is doing it without any external oversight. But a fake, illusory judicial process lends a perceived legitimacy to his execution powers that is not warranted by the reality of this process. Worse, it further infects the US judiciary with warped, secretive procedures more akin to a Star Chamber than anything recognized by the US Constitution. Beyond that, it takes a program that is now seen as a radical presidential power grab - Obama's kill list - and legitimizes and entrenches it by making both the Congress and courts cooperative parties.
It's one thing to have a secret court that lends a veneer of legality and legitimacy to the government's rampant spying behavior. It's quite another to have one that authorizes the government to kill people who have never been charged with, let alone convicted of, any actual crime. But it's a rather powerful reflection of how warped our political culture has become that a secret, unaccountable, one-sided "court" is being widely proposed to issue execution warrants, and that this is the "moderate" or even "liberal" position. How anyone could look at the Fisa court and want to replicate its behavior in the context of presidential executions is really mystifying.
"Fisa stats don't include surveillance under 2008 amendments. Public stats grossly understate extent of surveillance. . . . It's like disclosing stats for personality strikes while failing even to mention the signature strikes. Totally misleading."
The prime purpose of the 2008 Fisa Amendments Act was to authorize US government surveillance without the need for individualized warrants except in the narrowest cases. Instead, the government need merely obtain "program warrants": general approval for its methodology for spying but without any oversight over the specific targets chosen. The stats I quoted here reflect only the individual warrants the government sought and obtained. For that reason, as Jaffer notes, these public stats "grossly understate the extent of surveillance" conducted by the US. It's much, much greater: because most of it is conducted without warrants, the bulk of the surveillance is not part of what gets disclosed.