New Snowden Docs Reveal How The FISA Court Reinterpreted The Law -- And Its Own Role -- In Total Secrecy

from the and-against-the-public-interest dept

We've been writing about the secretive FISA Court (FISC) for quite some time, though a lot more often in the wake of the Ed Snowden revelations, seeing as it repeatedly approved these programs to spy on everyone. As has been noted in the past, the FISC was never supposed to be interpreting (or re-interpreting) the law. It was really just supposed to be about having judges (in secret) approving or disapproving requests from law enforcement to get warrants to spy on people. This is a perfectly reasonable role for a secret court. But things went seriously awry when it started trying to interpret the law, and to approve sweeping programs that effectively allowed the intelligence community to spy on everyone.

The NY Times has an in-depth look at how FISC reinterpreted both the law and its own role in near total secrecy, in the wake of September 11th. Reporters Charlie Savage and Laura Poitras (one of Snowden's first press contacts) use some previously unrevealed documents, including key FISC rulings, to explain what happened. The article focuses on the so-called "Raw Take" order -- docket 02-431 -- which removed restrictions that had been placed on the intelligence community regarding sharing information about Americans. The ruling came on July 22nd, 2002, while the country was still reeling from the September 11, 2001 attacks.
The Raw Take order appears to have been the first substantial demonstration of the court’s willingness after Sept. 11 to reinterpret the law to expand government powers. N.S.A. officials included it as one of three court rulings on an internal timeline of key developments in surveillance law from 1972 to 2010, deeming it a historic event alongside once-secret 2004 and 2006 rulings on bulk email and call data.
While the 9/11 Commission certainly did later find that a big problem in not uncovering the plot before it took place was the failure of the agencies in the intelligence community to share information with each other, this ruling seems to be a key point in having FISC go beyond merely giving the thumbs up or thumbs down to warrant requests and start interpreting the law, and doing so in a way that secretly (and massively) expanded the power of the intelligence community. From there, it was apparently off to the races, and other expansionist rulings followed:
The newly disclosed documents also refer to a decision by the court called Large Content FISA, a term that has not been publicly revealed before. Several current and former officials, speaking on the condition of anonymity, said Large Content FISA referred to sweeping but short-lived orders issued on Jan. 10, 2007, that authorized the Bush administration to continue its warrantless wiretapping program.
The fact that the FISC is clearly reinterpreting law -- such that a secret law is developed which clearly contradicts the public's (and many politicians') understanding of the law -- is on display:
But the orders are also mentioned in a classified draft of an N.S.A. inspector general report that Mr. Snowden disclosed, which calls them “Foreign Content” and “Domestic Content” orders. The report cites a legal theory that reinterpreted a key word in the original FISA — the “facility” against which the court may authorize spying because a terrorism suspect is using it.

Facilities had meant phone numbers or email addresses, but a judge accepted an argument that they could instead be the gateways connecting the American communications network to the world, because Qaeda militants were probably among the countless people using those switches. Privacy protections would be applied afterward, the report said.
The article also notes that the "Raw Take" report made it easier for the intelligence community to share information on Americans (information it's not really supposed to have, for the most part) with foreign nations:
The Raw Take order, back in 2002, also relaxed limits on sharing private information about Americans with foreign governments. The bar was higher for sharing with outsiders: Raw information was not provided, and even information deemed relevant about a terrorism issue required special approval.

Under procedures described in a 1984 report, only the attorney general could authorize such dissemination. But on Aug. 20, 2002, Attorney General John Ashcroft, citing the recent order, secretly issued new procedures allowing the N.S.A. to provide information to foreign governments without his clearance.
Also, the new documents reveal that despite Keith Alexander and others insisting that only a limited number of specially trained analysts could access the massive data collections, within the NSA it was widely known that the controls were not that strong and violations were likely to occur:
Access within the N.S.A. to raw FISA information was initially limited to its headquarters at Fort Meade, Md. But in 2006, the N.S.A. expanded sharing to specialists at its code-breaking centers in Hawaii, Texas and Georgia. Only those trained would obtain access, but a review demonstrated that wider sharing had already increased risks. A document noted that the agency was mixing two types of FISA information, each subject to different court-imposed rules, along with other records, and “it is possible that there are already FISA violations resulting from the way data has been stored in these databases.”

The sharing of raw information continued to expand after the enactment of the FISA Amendments Act. On Sept. 4, 2008, the court issued a lengthy opinion, which remains secret but was cited in another opinion that has been declassified, approving minimization rules for the new law. A video explaining the new rules to N.S.A. employees noted that “C.I.A. and F.B.I. can have access to unminimized data in many circumstances.”
While the revelations from the past few months had already exposed the basic concept of what was happening (the FISC going way beyond what most people thought it was there for, using pretzel logic to interpret laws into saying things that they clearly didn't say), this new report provides an insightful timeline and a peek into some of the key decisions, and how the NSA used those rulings to massively expand its ability to spy on Americans with near total secrecy.

If Congress is serious about fixing the NSA mess (and by no means do I think it is), one place to start would be to bring the FISC back down to its original mandate, and stop it from reinterpreting the law in secret. America is not supposed to have secret laws, but thanks to the FISC, we do.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    Ninja (profile), Mar 12th, 2014 @ 6:57am

    This is a perfectly reasonable role for a secret court.

    Am I the only one that thinks that any court being secret is an aberration in the first place?

    It makes perfect sense to keep some parts of trials confidential to some point to avoid issues with the whole process at times much like some investigations need to be kept secret to prevent the criminals from maneuvering away from them, trampling with them etc. But after all is said and done and a proper time frame has passed (or the reason to keep it secret has disappeared) then all proceedings must be made public. This is the only way that the public will be able to scrutinize such proceedings and eventually fix abuses and issues that may have arisen. Secret orders, secret proceedings etc cannot be discussed. Sure you need to preserve tactics and a few details when talking about intelligence or military operations but only to a degree. Otherwise it will be abused.

    On a side note, I've read a Cracked article recently telling how there will be no more war heroes anymore and one thing struck me: war vets were idolized to the point many were thrown into politics even though they had no experience in it. It may not be a really wrong thing (sometimes there are other characteristics that make up for the lack of experience or things are too new as it was with Lincoln) but this might explain why the US has such militaristic inclinations nowadays with the defense and law enforcement parts ruling all the rest. Again I'm no expert in American history but it caught my attention..

    reply to this | link to this | view in thread ]

  2. icon
    John Fenderson (profile), Mar 12th, 2014 @ 9:44am


    "Am I the only one that thinks that any court being secret is an aberration in the first place?"

    No, you're not. A secret court is not a real court, in my view. It certainly can't be a just court.

    The irony to all this is that the FISC exists as a result of the last time the spies got out of control, in an attempt to reign them in. Now, the FISC is an essential tool of the spies to allow them to resume and expand their wrongdoing.

    reply to this | link to this | view in thread ]

  3. identicon
    Anonymous Coward, Mar 12th, 2014 @ 9:45am

    When Secrecy and Loss of Liberty for Protection...

    Are in place, you WILL live long enough to see the good guys go bad.

    Wait... we are already there. We may not be hitler bad yet, but give it some time... as the TSA juggles everyone's butts, boobs, and balls it is a sure sign of what is to come.

    Next up... you have your money, your wife, your son, and your daughter all taken from you maybe raped and returned all in the name of security and "secret" police or courts that you have no legal recourse against.

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Mar 12th, 2014 @ 9:48am

    Re: Re:

    Men behind the curtains. They will obtain enough power to take over every branch of government with Threats and Blackmail. Politicians won't even really care that much because they just want the power. Its a win win... Alphabet soup agencies will do all of the dirty work while the figure heads preach at the pulpits.

    The Sheeple at home... welp that part doesn't seem to be changing.

    reply to this | link to this | view in thread ]

  5. icon
    Mike Masnick (profile), Mar 12th, 2014 @ 10:22am


    Am I the only one that thinks that any court being secret is an aberration in the first place?

    If the purpose is to approve warrants to collect data in the process of an investigation, that seems like something that makes sense to be done in secret, no? The details should *eventually* become public, but during the course of an investigation, I think it's reasonable to keep them secret.

    reply to this | link to this | view in thread ]

  6. icon
    John Fenderson (profile), Mar 12th, 2014 @ 10:32am

    Re: Re:

    "The details should *eventually* become public"

    I may be nitpicking about semantics here, but if the court's rulings become public eventually, it's not a secret court. Even normal courts hear secret evidence and issue secret rulings, but that secrecy is limited in time, and all is revealed ultimately.

    reply to this | link to this | view in thread ]

  7. icon
    OldMugwump (profile), Mar 12th, 2014 @ 10:41am

    Re: When Secrecy and Loss of Liberty for Protection...

    That will surely happen if we all don't act to prevent it.

    But it is not foreordained.

    "Optimism is a duty. The future is open. It is not fixed in advance. So no one can predict it – except by chance. The possibilities lying within the future, both good and bad, are boundless. When I say, “Optimism is a duty”, this means not only that the future is open but that we all help to decide it through what we do. We are all jointly responsible for what is to come. So we all have a duty, instead of predicting something bad, to support the things that may lead to a better future."
    --Sir Karl Popper

    reply to this | link to this | view in thread ]

  8. icon
    Ninja (profile), Mar 12th, 2014 @ 10:52am

    Re: Re:

    That eventually has to be clearly established and I agree with you. But keep an entire court a secret (its existence and purpose)? That's an aberration.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, Mar 12th, 2014 @ 11:51am

    what you also have to think about is that if they had anything extra to do, like doing the job properly, the members of the FISC wouldn't be able to do their job properly!!

    reply to this | link to this | view in thread ]

  10. icon
    That One Guy (profile), Mar 12th, 2014 @ 1:43pm

    And stuff like this is why I always put quotes around 'court' when discussing that lot, they're a rubber stamp, who do as their told by their bosses and little else, calling them a 'court', as though any justice is coming out of their actions is an insult to honest and open courts and judges elsewhere.

    reply to this | link to this | view in thread ]

  11. identicon
    An actual girl, Mar 12th, 2014 @ 4:53pm

    secret courts anyone?

    Actually, judicial secrecy in the US is an extraordinary topic. Did you know that FISA courts across the US routinely handle things like divorces among intelligence or military personnel where secret information may be revealed? Check out the (marathon) Kay Griggs interview (a former Marine Colonel's wife) for some amazing observations of what this means in practice.

    Our nation long ago devolved into a system of information haves and have nots -- with security clearances drawing the line between the two.

    reply to this | link to this | view in thread ]

  12. icon
    Ole Juul (profile), Mar 12th, 2014 @ 10:12pm

    Re: Re:

    " A secret court is not a real court, in my view. It certainly can't be a just court."

    At the very least, it needs oversight from some independent group. I suggest janitorial.

    reply to this | link to this | view in thread ]

  13. icon
    btrussell (profile), Mar 13th, 2014 @ 4:31am


    "Am I the only one that thinks that any court being secret is an aberration in the first place?"

    Not at all. You cannot claim that and/or secret laws are justice. Otherwise, I need the purpose of the legal system explained to me, since obviously punishment of any kind is meaningless for making people feel righted from a wrong or as a deterrent to others.

    reply to this | link to this | view in thread ]

  14. identicon
    yutenhow, Mar 14th, 2014 @ 8:54am

    secret courts

    Are secret courts constitutional or needed?
    Simple answer is "No"

    Can preceedings be made secret?
    For the course of an investigation so as evidence can be gathered and properly utilized, yes.
    Not for infinitum or for an indefinite amount of time.

    reply to this | link to this | view in thread ]

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