The court overseeing National Security Agency surveillance has given the government power to amass vast collections of data on Americans by creating a secret body of law with almost no public scrutiny, current and former U.S. officials told Eric Lichtblau of The New York Times.
The most important of the FISA court rulings — which have involved spying on those possibly involved in nuclear proliferation, espionage, and cyberattacks — involves carving out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures in the fight against terrorism.
“The definition of ‘foreign intelligence’ is very broad,” a former intelligence official told The Times. “An espionage target, a nuclear proliferation target, that all falls within FISA, and the court has signed off on that.”
The current 11 FISA judges, who were appointed by Supreme Court Chief Justice John G. Roberts Jr. and serve seven year terms, helped the NSA ostensibly sidestep the Constitution by significantly expanding the use of a legal principle known as the “special needs” doctrine.
Established in 1989, the ruling found that minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger.
The FISA judges have ruled to allow the government to apply that concept more broadly, which has led to an interpretation that the NSA's warrantless domestic dragnet does not violate of the Fourth Amendment, officials told The Times.
“It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, told The Times 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.”
The ruling would be controversial, except that almost no one knew about it: Lichtblau notes that unlike the Supreme Court, the FISA court hears only the government's side of a case and almost never makes its rulings public.
Last month NSA chief Keith Alexander testified that the programs for bulk collection of domestic phone and Internet data prevented "dozens of terrorist events," although members of Senate Intelligence committee have challenged that assertion.
In any case, the obvious problem with this quiet expansion of NSA power is the huge potential for abuse, especially since NSA analysts use their own discretionto look at the content of messages or listen to phone calls of Americans.
"The abuse is rampant and everyone is pretending that it's never happened, and it couldn't happen," Russ Tice, the original NSA whistleblower who claims to have seen a 2004 wiretap order for Barack Obama, told Business Insider. "I know [there was abuse] because I had my hands on the papers for these sorts of things."
Tice, citing a source currently working for the NSA, said that the agency now has the capability to store "every domestic communication in this country, word for word, content, every phone conversation, every email — they are collecting everything in bulk and putting it in databases."
Tice added: "Outrageous abuses ... have happened, and it's all being kept hush hush."
The government has the FISA court to thank for that.
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