Throughout the NSA/Ed Snowden surveillance scandal, the so-called FISA court that secretly reviews government spying orders has been cast as little more than a rubber stamp. With the release of a 2011 FISA court opinion on Wednesday, you can throw that opinion out, along with the notion that the NSA hasn’t spied on Americans.
The opinion released Wednesday reveals a plucky court that repeatedly scolds government agencies for “inaccurate” statements, misleading or incomplete filings, and for having “circumvented the spirit” of laws protecting Americans’ privacy.
The 86-page decision by the Foreign Intelligence Surveillance Court was released Wednesday when the Electronic Frontier Foundation won a two-year legal battle to force the government to make the ruling public. The court declared at the time that some data collection and inspection conducted prior to 2011 by the NSA was unconstitutional.
“Today, EFF can declare victory,” the privacy rights group said on its website. “President Obama has repeatedly said he welcomes a debate on the NSA’s surveillance: disclosing this opinion—and releasing enough of it so that citizens and advocates can intelligently debate the constitutional violation that occurred—is a critical step in ensuring that an informed debate takes place.”
Ultimately, the court ruled that changes to NSA procedures would bring the data surveillance program into compliance. But NSA critics now can point to a court opinion which repeatedly chastises the NSA and other federal agencies for over-reaching and skirting laws designed to balance the government’s need to investigate alleged terrorists with Constitutional protections against warrantless search and seizure.
In the heavily redacted ruling released Wednesday by the Department of Justice, the court notes that the NSA acquires “250 million Internet communications each year.” Despite prior assurances to the court that technology keeps the program on the right side of the law by limiting the collection of data to non U.S. persons outside the country, “tens of thousands of wholly domestic communications” were caught up in the digital dragnet.
In many places, Judge John Bates, who signed the opinion, sounds exasperated. Such as:
“The court is troubled that the government’s revelations regarding the NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program.”
“In March 2009, the court concluded that its authorization of NSA’s bulk acquisition of telephone call detail records from [redacted] in the so-called “big business records” matter ‘ha(d) been premised on a flawed depiction of how the NSA uses (the acquired) metadata,; and that this misperception (by the FISA court) existed from the inception of its authorized collection in May 2006, buttressed by repeated inaccurate statements made in the government’s submissions….”
“Contrary to the government’s repeated assurances, NSA had been routinely running queries of the metadata used querying terms that did not meet the required standard for querying. The court concluded that this requirement had been so frequently and systematically violated that it can fairly be said that this critical element of the overall…regime has never functioned effectively.”
*In criticizing a lack of information provided by government lawyers, the judges wrong, “The court expects future submissions by the government will comport with this requirement.”
“For the first time, the government has now advised the Court that the volume and nature of the information it has been collecting is fundamentally different from what the Court had been led to believe.”
“(The) court previously understood that NSA’s technical measures would prevent the acquisition of any communications in which the sender and all intended recipients were located in the U.S. NSA has acquired…tens of thousands of wholly domestic communications.”
“Though the collections of domestic communications is described by the government as a technology failure, the judges found “There is no question that the government is knowingly acquired Internet transactions that contain wholly domestic communications….By expanding its …acquisitions…NSA has, as a practical matter, circumvented the spirit (of the law)