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.

Filed Under: ed snowden, fisa, fisa court, fisc, intelligence community, nsa, privacy, raw take, surveillance