If the Congress is the builder of this boat, President Obama the Captain then here is a photo of the navigator.
In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving theNational 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 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 said.
If the NSA doesn’t have “direct access” to the private Internet and phone companies servers, or some other very intrusive access, how then does the NSA collect “more data than it was authorized”?
Then it seems that, at least in some cases, our guarantee to Constitutional Rights are left to the private Internet and phone companies when they challenge the NSA. The same agency who uses secret laws to enforce these searches and the challenge must be made to a secret court that does ‘t even seem to allow them to present it directly. Let me guess, each time they protest they have to “nail them” to the FISA Court house door?
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 activities.
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.
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.
The government has created a “vast pond” of information about us that they can “stick [their] pole[s] in and start fishing” but first they have to “establish a reason” for it. Let’s just get this straight, a database that could last forever (some reports say that the data is “only” saved for 5 years but it is unclear if that limit applies to the Metadata) but the restrictions are based upon the law, at that time?
“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.
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.”
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 the past, that probably would have required a court warrant because the suspicious e-mail involved American communications.
“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.”
“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.”
So, under the Obama Administration the Courts powers have vastley expanded, many times due to the efforts of the administration.
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.
The law has created a secret court that “has become almost a parallel Supreme Court”. Good thing that it operates in accordance with the long traditions of US Jurisprudence.
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 year. None of the requests from the intelligence agencies was denied, according to the court.
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.
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 attacks.
So, the FISA Court, a secret court whose Judges are appointed by Chief Justice Roberts and 10 of the 11 judges are Republican appointees. Sounds like this could still be ripe for abuse. I bet the appeals process is designed in such a way as to act as an effective balance to protect our civil liberties.
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.
More: In Secret, Court Vastly Broadens Powers of N.S.A.
The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven year terms.
In August 2008, the Court of Review affirmed the constitutionality of the Protect America Act of 2007 in a heavily redacted opinion, In re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act, released on January 15, 2009.
FISCR - Wiki
So let’s sumerize the whole article. A Domestic Intelligence Agency, who acts on the behalf of President Obama, has been set up so that it cannot effectively be reviewed by the normal judicial process. But it is controlled by a Secret Court whose members are appointed by Cheif Justice Roberts, and who are all mostly Republican Appointees. People individuals and companies that must abide by that law cannot get a hearing at that court as the only ones allowed to present anything to that court is the Government, President Obama.
And, if the people governed by that law ever knew enough about the secret findings of that secrect court and wanted to repeal it, they would do so at an appeals court whose judges are also appointed by Justice Roberts.
“I know that President Obama and I are normally at odds on many imprtant legal issues but in the case of the Patriot Act and the NSA’s domestic spying there is, as they say, “no daylight between us”. We are ‘bro’s man’, we are together on this and with my defacto control of FISA and FISCR, I’ve got his back man.”
“High, we are the five most conservative Supreme Court Justices all appointed by previous Republican Administrations. And, in this case we are, along with the 10 Republican Appointed judges on the FISA Court and those on the FISCR Court Obama’s “Posse”. If it does happen to slip by the blockade at the FISA / FISCR route due to pesky leakers like Snowden and get to a full SCOTUS review, we have proven that we can act as a group to stop that effort here and give that effort at restoring your Civil Right the ‘Ol’ Heisman’”.