An annual report to the United States Senate by the Justice Department shows the Foreign Intelligence Surveillance Court did not deny one single request made to the court by federal law enforcement. All applications to conduct electronic surveillance or “physical searches for foreign intelligence purposes” were granted.
The report, signed off on by Principal Deputy Assistant Attorney General Peter Kadzik, indicates:
During calendar year 2012, the Government made 1,856 applications to the Foreign Intelligence Surveillance Court (the “FISC”) for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes. The 1,856 applications include applications made solely for electronic surveillance, applications made solely for physical search and combined applications requesting authority for electronic surveillance and physical search. Of these, 1,789 applications included requests for authority to conduct electronic surveillance.
Of these 1,789 applications, one was withdrawn by the Government. The FISC did not deny any applications in whole or in part. The FISC made modifications to the proposed orders in 40 applications. Thus, the FISC approved collection activity in a total of 1,788 of the applications that included requests for authority to conduct electronic surveillance.
To put this into perspective, from 1978 (when it began to review requests) to 2012, it has rejected 11 FISA applications made by the FBI and other federal law enforcement agencies. It has approved 33,946 FISA application requests. And there has been a nearly 85% increase in the number of requests since 2000.
According to the report, “212 applications to the FISC for access to certain business records (including the production of tangible things) for foreign intelligence purposes,” were made. None of these requests were denied in whole or in part either. However, modifications were made to 200 “proposed orders,” which suggest for the vast majority of requests the FBI was on dubious legal grounds when it decided it wanted to obtain information.
The FBI also made 15,229 national security letter (NSL) requests “for information concerning United States persons” and “sought information pertaining to 6,223 different United States persons.” (The NSL requests excludes requests that were for “subscriber only” data.)
To put these numbers into context, first, this is all data from a secret court that makes secret rulings that despite the best efforts of a few senators are not going to be disclosed to the public anytime soon.
Democratic Senator Ron Wyden of Oregon said during a debate on amending the FISA Amendments Act (FAA) before reauthorization in December 2012, “The public has absolutely no idea what the court is actually saying. What it means is the country is in fact developing a secret body of law so Americans have no way of finding out how their laws and Constitution are being interpreted.”
Democratic Senator Jeff Merkley of Oregon sponsored an amendment during the very minimal debate on FAA reauthorization that Democratic Senator Harry Reid allowed, which would have required the rulings by the FISA court to be made public in some form. The Senate rejected this amendment.
The American Civil Liberties Union (ACLU) brought a lawsuit against FAA in 2008 arguing the law made it legally permissible for the government to conduct dragnet surveillance of Americans’ international communications, even if there was no probable cause or individualized suspicion for such surveillance. The lawsuit made it up to the Supreme Court, but in a 5-4 decision, the Court found the plaintiffs had no standing to challenge the law because they had no proof they were under secret surveillance.
Thus, America has a court that reviews surveillance requests in secret and makes rulings in secret that are kept secret under a law that likely violates citizens’ privacy yet the Supreme Court has made it impossible to challenge this in a court of law.
A key problem with the court was described by this Harvard Law Review in 2008:
One of the most striking elements of the FISA system is the total absence of adversariality. Because the collection of intelligence in this context requires by its very nature that the surveilled party not receive notice in advance, the ex ante [before the event] approval system is almost by definition also ex parte [secret]. This puts the FISC in an ”anomalous position,” in the words of the current Attorney General, similar to that of a court reviewing FISA materials for admission in a criminal case.
In such situations, “[t]he judge is forced not only to act as an arm of the prosecution in weighing the prosecution’s arguments about whether disclosure would or would not compromise national security, but also to act as a defense lawyer in determining whether the information is useful to the defendant.” Similarly, in reviewing a FISA application, the FISC must attempt the difficult, if not impossible, task of simultaneously occupying the roles of advocate and neutral arbiter — all without the authority or ability to investigate facts or the time to conduct legal research. The judge lacks, a skeptical advocate to vet the government’s legal arguments, which is of crucial significance when the government is always able to claim the weight of national security expertise for its position. It is questionable whether courts can play this role effectively, and, more importantly, whether they should. [emphasis added]
Or, as Steven Donziger put it for The Nation in his article, “The Twilight-Zone Court,” in 2003, “The FISC is certainly a peculiar institution. It hears only one side of every case–the government’s. No defense attorney or member of the public has ever attended one of its sessions.”
Donziger highlighted how it had not always at the power to authorize “physical searches of people’s homes.” Now, with a FISA court warrant, FBI agents can “break into private homes” and not tell occupants they were there. It entirely forecloses the possibility of challenging the warrant in court. Evidence collected can be used to prosecute an individual in criminal court on charges that have “little or nothing to do with national security.”
The FISA court can also be used to obtain warrants for searches in “run-of-the-mill domestic criminal prosecutions” so long as it has a slight hint of “foreign associations” involved. Attorney General Ashcroft made this permissible right after the September 11th attacks.
This is the court that a number of Democrats in Congress might consider modeling a targeted killing court after. According to the Bureau of Investigative Journalism (TBIJ), there have been 368 US drone strikes in Pakistan from 2004-2013. There have been 44-54 US drone strikes in Yemen from 2002-2013. There have been 3-9 US drone strikes in Somalia. That means 415 individuals have feasibly been targeted in a drone strike in a country where the US is not at war (although the national security state maintains “the world is a battlefield”).
If there had been a court to grant the government killing authority, how many of those applications would have been denied? One or less. A number may have been modified or the US government may have been urged to withdraw an application and return later with a more solid request, but the FISA court would have rubber stamped nearly all applications like it has rubber stamped surveillance requests time and time again. And that is only drone strikes and does not include targeted killings with special operations forces in night raids or instances where gunships launched cruise missiles at alleged terrorists.
This is why human rights groups oppose replicating such a court and in a recent letter to President Barack Obama wrote:
We do not believe that accountability and transparency will be improved by recent proposals to establish a FISA-like court to sanction lethal targeting operations. On the contrary, a special targeted killing court would give a veneer of judicial review to decisions to launch lethal strikes without offering a meaningful check on executive power. Instead, we urge the administration to cease making broad claims of non-justiciability or political question, to prevent cases alleging human rights or constitutional violations from being heard on their merits.” In other words, stop utilizing “political question and immunity doctrines, Bivens special factors, and the state secrets privilege to obstruct litigation.
Finally, in March, a district court in California found NSL “gag provisions” violate the Fourth Amendment, separation of powers principles and “significantly infringe upon speech regarding controversial government powers.”
NSLs, as the ACLU, describes, make it possible for the FBI to compile “vast dossiers about innocent people and obtain sensitive information such as the web sites a person visits, a list of email addresses with which a person has corresponded, or even unmask the identity of a person who has posted anonymous speech on a political website.”
The government was enjoined from issuing NSLs under a part of the law because the “pervasive use of nondisclosure orders, coupled with the government’s failure to demonstrate that a blanket prohibition on recipients’ ability to disclose the mere fact of receipt of an NSL is necessary to serve the compelling need of national security, creates too large a danger that speech is being unnecessarily restricted.” If it did not appeal within 90 days, it would essentially lose the ability to issue gag orders under the statute for NSLs.
Between NSLs and FISA applications, surveillance is either being conducted on individuals by the government—and no US citizen is permitted to know the details and justification for it—or surveillance is being conducted on persons, who are not allowed to speak openly about being subjected to surveillance—and citizens are not permitted to know details about that government surveillance.
All of which makes possible the expansion of a pervasive surveillance state that, by the way, Congress refuses to constrain in its capacity and power. So, surveillance steadily escalates and whether it is happening within the confines of law or not or whether it is violating civil liberties or not, Americans are not permitted to know. They are not permitted to bring any challenges whatsoever.