Archive for the 'Civil Liberties' Category
When President Obama announced on Friday a series of reforms to the National Security Agency’s phone record surveillance program, he also proposed a way for a public advocate to represent privacy and consumer interests in certain cases before the secretive Foreign Intelligence Surveillance Court.
Obama proposed creating a panel comprised of advocates for civil liberty, technology and privacy interests, according to the Washington Post. The newspaper went on to summarize his proposal this way:
“Their job will be to represent Americans, but only when the FISA court faces ‘novel issues of law,’ according to a senior administration official. In other words, those advocates will become involved when the [Foreign Intelligence Surveillance Act] court encounters a question or type of data it hasn’t dealt with before. But officials Friday weren’t clear about whether they would be called in by the court or if they could weigh in of their own volition.” Read more
President Obama is expected to call on Friday, in unveiling a package of proposed surveillance reforms, for establishing a public advocate to argue before the secretive Foreign Intelligence Surveillance Court on behalf of privacy and civil liberty concerns.
However, in a letter this week, former FISC Chief Judge John Bates (photo) urged against creating such a public advocate, according to the New York Times, saying the advocate should rather be appointed when the court found it necessary.
“Given the nature of [Foreign Intelligence Surveillance Act] proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation,” Judge Bates said, according to Reuters. If there were broad participation in the court by a public advocate it could, he warned, ”actually undermine the Courts’ ability to receive complete and accurate information on the matters before them.” Read more
In order to better guard privacy and civil liberties, an Obama administration review group has recommended reforms involving the Foreign Intelligence Surveillance Court, which has been in the media spotlight this year.
- SELECTION: No longer would the United States Chief Justice have sole authority to appoint jurists to the secretive court. That authority would be divided up among all justices, who would be able to name one or two FISC judges from within the circuits each justice oversees.
- PUBLIC ADVOCATE: The reviewers recommended that FISC hear arguments not only from the Justice Department but also from a to-be created Public Advocate, whose job “would be to represent the interests of those whose rights of privacy or civil liberties might be at stake.” Read more
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