Archive for the 'Civil Liberties' Category
As the Senate Judiciary Committee convened a hearing on government surveillance programs, the American public got its first glance at a once-secret court order that approved massive government collection of telephone call data.
The order by the Foreign Intelligence Surveillance Court “stipulates that a small number of analysts and supervisors are authorized to access the records for the limited purpose of matching them against phone numbers linked to terrorism,” according to a Los Angeles Times article.
The newly declassified document was among several released by the Office of the Director of National Intelligence. The order allowed government access to telephone logs if an official from the executive branch deems there are “facts giving rise to a reasonable, articulable suspicion” that a targeted number is linked with terrorism, the New York Times reported. Read more
There’s no resolution in sight of the controversy over recent disclosures of sweeping government surveillance of Internet and phone data. But one certainty is this: the secretive federal court that is asked to approve extensive data-gathering is itself getting unusual, heightened scrutiny.
This weekend, the Washington Post weighed in with a front-page article entitled, “For secretive surveillance court, rare scrutiny in wake of [National Security Agency] leaks.” It reported that U.S. District Judge John Bates, a member of the Foreign Intelligence Surveillance Court, met with numerous senators earlier this month in a secure Washington meeting room at the Capitol, and was asked to discuss the court’s work.
The two-hour session with Judge Bates and two spy agency officials, the Post reported, “reflects a new and uncomfortable reality for the Foreign Intelligence Surveillance Court and its previously obscure members. Within the past month, lawmakers have begun to ask who the court’s judges are, what they do, why they have almost never declined a government surveillance request and why their work is so secretive.”
As part of the scrutiny, there is legislation seeking to shed sunlight on secret orders of the court, and there are requests for the Obama administration to make public summaries of the court’s opinions, at the least. Read more
The secretive court getting new scrutiny in the wake of disclosures about government Internet and telephone data-gathering has counted 12 Republicans among its 14 judges this year, Reuters reports.
Yet judges of the Foreign Intelligence Surveillance Court “also have issued orders in public cases that belie their conservative, law-enforcement roots, sometimes ruling against the government in terrorism-related cases,” Reuters says in its intriguing portrait of the members of the Washington, D.C.-based court.
The article includes comments by experts who question the bench’s diversity and the direction of its evolution over 35 years. The judges are chosen from trial courts around the country by the chief justice of the United States.
“Since [the Foreign Intelligence Surveillance Act] was enacted in 1978, we’ve had three chief justices, and they have all been conservative Republicans, so I think one can worry that there is insufficient diversity,” Stephen Vladeck of American University’s Washington College of Law told Reuters. Read more
Glenn Greenwald, who recently has reported disclosures about U.S. government Internet and telephone information-gathering, now turns his focus to the secretive Foreign Intelligence Surveillance Court in Washington and finds its purported oversight a “fig leaf.”
Drawing upon secret documents Greenwald says he has obtained, he writes in The Guardian that political leaders, journalists, and government officials say there are legal safeguards protecting Americans from certain warrantless surveillance, and these “claims are highly misleading, and in some cases, outright false.”
Under amendments in 2008 to existing foreign intelligence surveillance law, Greenwald writes, “no warrants are needed for the [National Security Agency] to eavesdrop on a wide array of calls, emails and online chats involving US citizens. Individualized warrants are required only when the target of the surveillance is a US person or the call is entirely domestic. Read more
The American Civil Liberties Union has filed a lawsuit challenging the constitutionality of a National Security Agency phone data collection program that was the subject of a leak to news media last week, which in turn ignited controversy over the court-approved program.
According to a New York Times article, the challenged effort was launched as part of the George W. Bush administration’s surveillance programs conducted without court approval, and it “has continued since 2006 with the blessing of a national security court” under the USA Patriot Act. That secretive bench is called the Foreign Intelligence Surveillance Court.
A New York Times editorial called for a substantive public debate over government surveillance, and it urged Senate Intelligence Committee Chairwoman Dianne Feinstein to pry open some closely held secrets of the Foreign Intelligence Surveillance Court.
She ought to demand that the Obama administration make public a document explaining strictures on a secret phone-data collection program that was the subject of a news leak in the past week, the editorial said. She had alluded to the document on a TV talk show.
In addition, perhaps a public debate would benefit from release of some of the court’s opinions that made the data-collection program possible, and Sen. Feinstein could prod the administration “to make the court even slightly more transparent,” the editorial said.
A different approach to bringing sunlight to some the secretive court’s work product was expected in the Senate. According to an article in The Guardian, a group of senators was preparing to introduce on Tuesday a bill “to force the government to disclose the opinions of a secretive surveillance court that determines the scope of the eavesdropping on Americans’ phone records and internet communications.” Read more
The role of a secretive federal court in Washington is getting increased scrutiny as debate rages over disclosures of programs for U.S. government surveillance and collection of telephone call and Internet data for national security purposes (see Gavel Grab).
On Friday, President Obama said in defense of the programs, according to the Washington Post, “What you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress, bipartisan majorities have approved them, Congress is continually briefed on how these are conducted . . . and federal judges are overseeing the entire program throughout.”
But whether the oversight provided by the branches, including the Federal Intelligence Surveillance Court, is meaningful was questioned by civil libertarians, some academics and members of Congress.
“I find it difficult to believe that Congress or the FISA court provide the robust oversight to which President Obama alluded,” Stephen I. Vladeck, who teaches law at American University, told the Washington Post for a separate article.
When the court entrusted with ensuring Americans’ rights in this realm “meets in secret, allows only the government to appear before it and rarely publishes its decisions,” there is undermining of judicial oversight, contended Jameel Jaffer of the American Civil Liberties Union. Read more
Surveillance, privacy, and civil liberties remained perhaps the hottest Washington topics of the day on Friday after disclosures about the National Security Agency and FBI gathering intelligence through leading Internet companies, to track foreign targets. This followed earlier reports (see Gavel Grab) about government collection of telephone records for millions of Americans.
A national security court figured in the news reports about both surveillance programs, and it was becoming a topic of commentary.
The Washington Post and The Guardian broke the news about Internet surveillance. “Surveillance Leaks Likely to Restart Debate on Privacy,” declared a New York Times headline. According to the article, “an array of civil liberties advocates and libertarian conservatives said the disclosures provided the most detailed confirmation yet of what has been long suspected about what the critics call an alarming and ever-widening surveillance state.”
The role of the secret Foreign Intelligence Surveillance Act court in ordering the telephone record collection was addressed by a New York Times editorial. “We are not questioning the legality under the Patriot Act of the court order disclosed by The Guardian. But we strongly object to using that power in this manner,” the editorial said.
The Guardian newspaper triggered immediate controversy when it reported on Wednesday, “The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.”
The report by the United Kingdom-based newspaper about surveillance activities carried out under the Patriot Act in the Obama administration quickly drew comment from top leaders in Washington.
Leading Senate Intelligence Committee members offered a context for the report, according to a New York Times article. They said the three-month order looked like it was a routine reauthorization under a more far-reaching program that lawmakers have been familiar with for quite a while.
“As far as I know, this is exact three-month renewal of what has been the case for the past seven years,” Sen. Dianne Feinstein said, adding that it was handled by the Foreign Intelligence Surveillance Court “under the business records section of the Patriot Act. Therefore, it is lawful. It has been briefed to Congress.”
Sen. Richard Durbin of Illinois voiced alarm. “There’s been a concern about this issue for some time,” he said. “That’s why I think sunsetting many of these laws is appropriate because circumstances change in terms of America’s security. And our information and knowledge change in terms of threats to America.” Durbin and Feinstein are Democrats.
The FISA court is a secret national security court. It issued the order to a Verizon subsidiary. The order involves “metadata,” collections of time and data logs that do not reflect either content or a subscriber’s name.
Jeh C. Johnson, the Pentagon’s former top lawyer, expressed skepticism about ideas floated for a kind of national security court that would review government targeted killings of U.S. citizen terror suspects overseas.
He said one of the numerous difficult questions about such a court would be whether its scope extended just to Americans or also to other suspected terrorists, according to a New York Times article. Another question would involve the inevitable accusations that the court served as a “rubber stamp” for targeted killings.
In his speech at Fordham Law School, Johnson also raised questions about judges being used as “top cover” for “death warrants” when the executive branch alone provides secret evidence to them, and especially in situations where fast-changing criteria — such as the assessment of an imminent threat — are involved.
The New York Law Journal also provided coverage of Johnson’s address.