[governance] 1,856 to Zero: Secret Spy Court Authorizes 100% of US Government Requests

[Riaz K Tayob]

[Not even a token denial... for plausibility...]

Published on Friday, May 3, 2013 by Common Dreams 
<http://www.commondreams.org>


    1,856 to Zero: Secret Spy Court Authorizes 100% of US Government
    Requests


      In court where civilians have no representative, government's
      "national security" claims win again and again

- Lauren McCauley, staff writer

A secret federal court last year did not deny a single request to search 
or electronically spy on people within the United States "for foreign 
intelligence purposes," according to a Justice Department report this week.

(Photo: byungkyupark/ Flickr) The report (pdf) 
<http://www.wired.com/images_blogs/threatlevel/2013/05/fisacases.pdf>, 
which was released Tuesday to Senate majority leader Harry Reid 
(D-Nev.), states that during 2012, the Foreign Intelligence Surveillance 
Court (the "FISC") approved every single one of the 1,856 applications 
made by the government for authority to conduct electronic surveillance 
and/or physical searches for foreign intelligence purposes.

This past year saw 5 percent more applications than 2011, though no 
requests were denied in either. Besides the numbers provided, no other 
information regarding the court and the court's decisions are made public.

As /Wired's/ David Kravets explains: 
<http://www.wired.com/threatlevel/2013/05/spy-court-stats/>

    The secret court, which came to life in the wake of the Watergate
    scandal under the President Richard M. Nixon administration, now
    gets the bulk of its authority under the FISA Amendments Act, which
    Congress reauthorized for another five years days before it would
    have expired last year.

    The act allows the government to electronically eavesdrop on
    Americans' phone calls and e-mails without a probable-cause warrant
    so long as one of the parties to the communication is believed
    outside the United States.

Previous to its 2012 reauthorization 
<https://www.commondreams.org/headline/2012/12/28>, Senator Ron Wyden 
(D-Ore.) said during a debate on amending the FISA Act, "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."

Putting the FISC in context, Kevin Gosztola at /FireDogLake/ writes 
<http://dissenter.firedoglake.com/2013/05/02/surveillance-state-unchecked-secret-spy-court-rejected-zero-requests-in-2012/>, 
"America has a court that reviews surveillance requests in secret and 
makes rulings in secret that are kept secret."

He goes on to cite a 2008 Harvard Law Review, which critiqued the unique 
arrangement of the secret court system, to explain why the court's 100 
percent acceptance rate may be unsurprising:

    One of the most striking elements of the FISA system is the total
    absence of adversariality.

    [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]

The Justice Department report also noted that the government issued 
15,229 National Security Letters last year. The letters, issued by the 
FBI compelling "internet service providers, credit companies, financial 
institutions and others to hand over confidential records about their 
customers," were declared unconstitutional in March. However, the 
decision was stayed 90 days pending the White House's expected appeal.

_____________________

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