Renewing Federal Powers for Domestic Spying
The secretive federal court that oversees the nation’s spies is laying the groundwork for temporarily reauthorizing the National Security Agency’s (NSA) sweeping collection of U.S. phone records.
In an order released on Friday, the Foreign Intelligence Surveillance Court said that a brief lapse in some Patriot Act provisions would not bar the court from renewing the NSA’s powers. Although the court asserted its ability to renew the controversial NSA program, it has yet to issue an order giving a green light to the spy agency.
The June signing of the U.S. Freedom Act turned on the clock giving the NSA six months to stop bulk data collection. The Hill article reports on steps the NSA is taking to get around this constraint on bulk data collection.
There has been much discussion, on the pages of this blog and elsewhere (here, here, and here to name just a few), about the procedural shortcomings of the FISA Court — the lack of any party opposing the government’s position and the secrecy of the court’s decisions. Proposals to fix the court have focused on establishing a special advocate and requiring disclosure of redacted or summarized versions of court rulings.
A new Brennan Center report suggests that the problem with the court goes much further, and that fixing the FISA Court will require fixing FISA itself.
The Brennan Center report “What Went Wrong with the FISA Court” argues that FISA Court searches are expanding beyond original cases of suspected terrorism:
The pool of permissible targets is no longer limited to foreign powers – such as foreign governments or terrorist groups – and their agents. Furthermore, the government may invoke the FISA Court process even if its primary purpose is to gather evidence for a domestic criminal prosecution rather than to thwart foreign threats.
Under today’s foreign intelligence surveillance system, the government’s ability to collect information about ordinary Americans’ lives has increased exponentially while judicial oversight has been reduced to near-nothingness. This report concludes that the role of today’s FISA Court no longer comports with constitutional requirements, including the strictures of Article III and the Fourth Amendment. The report lays out several steps Congress should take to help restore the FISA Court’s legitimacy.