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 @ 10:02pm

    Re: Re: Re: Re: Re:

    "I would hope TD could maintain some standards better than a comparison to NSA !"

    Well at least we can agree the NSA abuse is far worse, that's a starting point at least. I wont argue about the "Editor-in-Chief" part, as I do not know how Articles are posted on TD and if Masnick reviews them, so any comment I made would be in ignorance. Even so I challenge your point:
    "so when masnick does it it's an honest 'mistake', but when anyone else does it, it's a lie ?"

    You invoke the lie as being caused by Masnicks own actions through your choice of words, whether you intended for them to carry that meaning. Saying someone has some responsibility or is directly responsible have different meanings.

    Going back to the root of this issue though, I still believe your reading the sentence incorrectly. The article simply states that leaks are coming out (True), and that the leaks are revealing the NSA Abuse (Also True). It does not state that the declassification is part of these leaks, and while you can argue that it is implied, it is just as easily to argue it is not implied (The joys of the English language). Considering the fact that the 'supposed' Embellishment would not change the effect of the Article whether it was there or not, I'd be willing to say that it is not implied as it is pointless to imply it, and rather its the way you're reading the statement.

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