Declassified FISA Court Opinion Shows NSA Lied Repeatedly To The Court As Well

from the that's-officially-everybody dept

The EFF finally gets to step away from one of its many legal battles with the government with its hands held aloft in victory and clutching a long-hidden FISA court opinion.

For over a year, EFF has been fighting the government in federal court to force the public release of an 86-page opinion of the secret Foreign Intelligence Surveillance Court (FISC). Issued in October 2011, the secret court's opinion found that surveillance conducted by the NSA under the FISA Amendments Act was unconstitutional and violated "the spirit of" federal law.
Beyond the many instances of NSA malfeasance, the most damning aspect of the opinion is its lack of effect on future behavior. What does make it past the redaction details repeated wrongdoing that even the FISA Court, long perceived to be the NSA's rubber stamp, found egregious.

A footnote on page 16 points out that the agency had "substantially misrepresented" the extent of its "major collection program" (including the harvesting of "internet transactions") for the third time in less than three years. The same set of footnotes attacks the so-called "big business records" collection, accusing the agency of using a "flawed depiction" of how it used the data to basically fleece the FISA court since the program's inception in 2006.

Then there's this pair of concluding sentences, which severely undercut anyone's arguments that the FISA Court is a reliable form of oversight.
Contrary to the government's repeated assurances, NSA has been repeatedly running queries of the metadata using querying terms that did not meet the standard for querying. The Court concluded that this requirement had been "so frequently and systemically violated that it can fairly be said that this critical element of the overall… regime has never functioned effectively."
Other pages detail more concerns, including misrepresentation of the methods used in 702 collections, which the opinion claims "fundamentally alters the Court's understanding of the scope of the collection."

As the Washington Post points out, this opinion, which details many instances in which the NSA flat out lied to the court, lends some credence to statements made by presiding judge Reggie Walton, who claimed the court was limited to making decisions based on information the NSA provided. This opinion appears to detail the NSA setting up its own complicit court system, intentionally misleading it in order to continue its surveillance programs unabated.

The only problem with accepting Walton's narrative completely is the fact that, despite this opinion, the court granted every request that year (2011) and then proceeded to do the same the following year. The court was lied to but still kept giving the agency the thumbs-up on each new court order.

The leaks keep coming and keep pointing to the same conclusion: the NSA has acted as a law unto itself. And all the while it continues to point at its "overseers," which include Congress (which has been lied to directly by the agency when not having information withheld from it by the leaders of the House Intelligence Committee) and the FISA Court (which has been lied to directly and is hampered by its reliance on the NSA's data and narratives -- which pretty much just means more lying).

And despite all this evidence that the NSA's "oversight" is nearly completely compromised, the defenders, including those within the agency, continue to insist the system is working the way it should. In their eyes, maybe it is.

Filed Under: fisa, fisc, nsa, privacy, surveillance


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  1. identicon
    Anonymous Coward, 21 Aug 2013 @ 9:39pm

    Re: Re: Re:

    Firstly, this Article was written by Tim, so your a liar for attempting to Attack Mansick via an article that he did not write.

    Secondly, the article only mentions Leak when talking about ALL THE OTHER documents that are being released, while you can argue it MAY imply this document was a Leak as well, it can just as easily be argued that it does not

    Thirdly, as I mentioned above, the 'lie' itself seems to be simply a poor choice of terminology. Was it done maliciously? Possibly, but even if we wish to assume that's true it does not kill the underlying point of the article, which is the NSA lied repeatedly to the FISA court.

    Fourthly, even if you want to say Lying is black and white, it's something you do or you do not do, the effects of the lie are most certainly a level thing. For example, we have you lying about Mansick by saying the mistake was his when it was Tim's. While it still a lie, overall it is not harmful. Then we have "lie's" (And I put that in quotes because I am still not convinced), in the article with the choice of terminology, perhaps it was embellished slightly but overall the effect is minor.

    Then you have a lie told to the ENTIRE COUNTRY, a lie which is flat out near the exact opposite of the truth, and the lie itself is used to ensure people that 'Nothing bad' is happening, a lie that when it is revealed, shines the light on the massive growth of injustice that the NSA is now engaged in.

    If you want to mistrust TD for its poor choice (or perhaps deliberate embellishment) of words, than you are welcome to, but I think you will be hard pressed to find anyone who believes that comes anywhere near as damaging as the lies the NSA have spread

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