BY DAVID KRAVETS
A secretive federal court last year approved all of the 1,856 requests to search or electronically surveil people within the United States “for foreign intelligence purposes,” the Justice Department reported this week.
The report (.pdf), released Tuesday to Harry Reid, the Senate majority leader from Nevada, provides a brief glimpse into the caseload of what is known as the Foreign Intelligence Surveillance Court. None of its decisions are public.
The 2012 figures represent a 5 percent bump from the prior year, when no requests were denied either.
The secret court, which came to life in the wake of the Watergate scandal under the President Richard M. Nixon administration, now gets the bulk of its authority under the FISA Amendments Act, whichCongress reauthorized for another five years days before it would have expired last year.
The act allows 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 believed outside the United States.
The legislation does not require the government to identify the target or facility to be monitored. It can begin surveillance a week before making the request to the secret court, and the surveillance can continue during the appeals process if, in a rare case, the spy court rejects the surveillance application.
All the while, the government has interpreted the law to mean that as long as the real target is al-Qaeda, the government can wiretap purely domestic e-mails and phone calls. That’s according to David Kris, a former top anti-terrorism attorney at the Justice Department.
In short, Kris said the FISA Amendments Act gives the government nearly carte blanche spying powers.
Kris, who headed the Justice Department’s National Security Division between 2009 and 2011, writes in the revised 2012 edition of National Security Investigations and Prosecutions:
For example, an authorization targeting ‘al Qaeda’ — which is a non-U.S. person located abroad — could allow the government to wiretap any telephone that it believes will yield information from or about al Qaeda, either because the telephone is registered to a person whom the government believes is affiliated with al Qaeda, or because the government believes that the person communicates with others who are affiliated with al Qaeda, regardless of the location of the telephone.
The Supreme Court in February turned away a challenge to the spy law.
A high court concluded 5-4 that, because the eavesdropping is done secretly, the ACLU, journalists and human-rights groups have no legal standing to sue because they have no evidence they are being targeted by the FISA Amendments Act.
The same Justice Department report this week said the government issued 15,229 National Security Letters last year, down from 16,511 in 2011.
The letters are written demands from the FBI that compel internet service providers, credit companies, financial institutions and others to hand over confidential records about their customers, such as subscriber information, phone numbers and e-mail addresses, websites visited and more.
The letters were declared unconstitutional in March, a decision that was stayed 90 days pending the President Barack Obama administration’s expected appeal.
Hat Tip: Secrecy News