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. This comment has been flagged by the community. Click here to show it
    Anonymous Coward, 22 Aug 2013 @ 12:55am

    Re: Re: Re: Re: Re: Re:

    it's a clear misrepresentation of the facts, the article it titled "declassified documents", the body of the article talks about these released declassified documents, they the author of the article by referring them to Leaks (that keep coming) is a misrepresentation of the facts.

    The leaks keep coming and keep pointing to the same conclusion:

    So now he is trying to represent this declassified document as a "leak that keeps on coming and point to the same conclusion"

    First, we all know now it's NOT a leak, and it draws no conclusions, opinion is not conclusion.

    The term leak is a lie, when what it refers to is not a leak !

    A lie, by definition is saying something that is not true !

    It is not true this is a leak, so what does that make the statement it is ?

    Lie's are not like votes it does not matter how many of them you have in a single article, one is enough !

    If you want to undermine your own credibility and believability then just keep saying things that are not true.

    Because if you can misrepresent something like this to get your point across what else are you willing to misrepresent ?

    It's not my fault I don't trust what you say, if you say things that are untrue. If you want me to believe everything you say, make sure it's believable.

    It's not something you (TD) needs to do, but by doing it you have lowered yourself to their level. And made yourselves look somewhat slap happy, and 'free and lose' with the truth.

    The facts as they stand should speak for themselves, we don't need TD to try to make it worse, it has the opposite effect to what you are seeking to achieve !

    TD does itself a disservice by playing free and lose with the truth when it is not necessary to put yourself in that position.

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