Editorial: Secret FISA court rubber stamps U.S. surveillance

Published: Sunday, Jun. 23, 2013 - 12:00 am | Page 6E

Trust us. That's what the president and intelligence officials are telling Americans who are rightly concerned about the massive surveillance of our daily communications.

They say that Congress and the courts are watching over them to make sure this intelligence gathering isn't going too far and is truly keeping us safe from terrorists. But the more is revealed about these supposed safeguards, the less we should feel confident that our privacy and liberties are being protected.

Those doubts shroud the secret court where the government has to go to get permission for its snooping, both foreign and domestic. Ironically, the special court was created by the Foreign Intelligence Surveillance Act of 1978 to protect U.S. citizens after congressional hearings exposed illegal domestic surveillance without court-authorized warrants.

Known as the FISA court, it has become far busier since 9/11 – and the government almost always gets its way.

The last three years, the judges approved every single one of the 5,179 applications; 40 of them were modified before permission was granted. One was withdrawn by the government before a ruling. The numbers are similar in previous years, according to groups that keep track. From 1979 through 2009, the court approved a total of nearly 28,800 requests, modifying about 400. It rejected only 11, while the government withdrew about 20.

That looks more like a rubber stamp than an independent and vigilant watchdog.

It's troubling enough that the court has routinely issued one-year blanket "certificates" authorizing the newly disclosed data mining that has caused so much controversy. As the Washington Post reports, the National Security Agency runs two broad surveillance programs. One collects "metadata" on domestic phone calls, the other on electronic communications. The trillions of records stored in NSA databases include the time and participants, but not the content.

Two smaller programs intercept what's said in telephone calls and the content of Internet communications, including emails, photos and videos. While foreigners are the target of the surveillance, Americans can get swept up. The NSA can keep the email and phone calls of U.S. citizens if the communications contain "significant foreign intelligence" or evidence of a crime, according to documents leaked last week.

Our elected leaders are complicit in this intrusive surveillance. In 2008, Congress and then-President George W. Bush authorized the broad surveillance programs. Last year, that authority was renewed until 2017 by Congress and Barack Obama.

They also constrained the court's watchdog role by setting the government's burden of proof so low. The court's 11 federal judges, appointed for seven-year terms by the U.S. Supreme Court's chief justice, hear only from the government before ruling. Federal prosecutors don't have to present evidence. They only need to declare they are seeking records "relevant" to an investigation of a foreign power or foreign agent.

Still, the court's presiding judge, Reggie Walton, says there is a "rigorous review" of government requests. "The perception that the court is a rubber stamp is absolutely false," he said in a statement to Reuters.

That perception is partly because the court operates in secret; its hearings and decisions are classified.

A good start toward transparency would be a bill (S. 1130, the Ending Secret Law Act) introduced this month by a bipartisan group of eight U.S. senators. It would require the attorney general to make public significant decisions by the FISA court, or at least an unclassified summary if there are national security concerns. Rep. Adam Schiff, D-Burbank, introduced a companion bill in the House on Thursday. The Obama administration is considering releasing portions of some court rulings.

If the government wants our trust, the least it can do is be more upfront about what it's doing.

© Copyright The Sacramento Bee. All rights reserved.

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