Tag: domestic spying
To Protect Our Privacy, Make The FISA Court Act Like A Real Court

To Protect Our Privacy, Make The FISA Court Act Like A Real Court

By Faiza Patel and Elizabeth Goitein, Los Angeles Times (TNS)

The expiration of key surveillance authorities this spring will force Congress to grapple with the sprawling spying activities exposed by Edward Snowden. Defenders of the status quo sound a familiar refrain: The National Security Agency’s programs are lawful and already subject to robust oversight. After all, they have been blessed not just by Congress but by the judges of the Foreign Intelligence Surveillance Court, or FISA court.

When it comes to the NSA’s mass surveillance programs, however, the FISA court is not acting like a court at all. Originally created to provide a check on the executive branch, the court today behaves more like an adjunct to the intelligence establishment, giving its blanket blessing to mammoth covert programs. The court’s changed role undermines its constitutional underpinnings and raises questions about its ability to exercise meaningful oversight.

The FISA court was born of the spying scandals of the 1970s. After the Church Committee lifted the curtain on decades of abusive FBI and CIA spying on Americans, Congress enacted reforms, including the Foreign Intelligence Surveillance Act of 1978. The law established a special court to review government applications to intercept communications between Americans and foreigners overseas for the purpose of acquiring information about foreign threats.

Members of Congress debating the law were concerned about a court that would operate in secret and hear only the government’s side of the argument. The Constitution limits courts to resolving actual “cases or controversies.” This generally requires the presence of two parties with adverse interests, as well as a concrete dispute that allows the court to apply the law to the facts of the case.

Although even the Justice Department agreed it was a “difficult question,” Congress decided that the FISA court procedure was constitutional because of its similarity to regular criminal warrants. There, too, the court hears only from the government, yet constitutional requirements are satisfied because the subject of the search eventually must be notified and may mount a challenge at trial. (The analogy is imperfect, as subjects of FISA surveillance are notified only if legal proceedings result, which is rare in foreign intelligence cases.) And, like their counterparts reviewing criminal warrant applications, FISA judges would apply the law to the facts of a particular case.

Nearly four decades later, the core assumptions about what made the FISA court legal have been upended. Take the court’s role in approving the NSA’s bulk collection of Americans’ phone records. The Patriot Act allows the FBI to obtain business records if it demonstrates to the FISA court that they are “relevant” to a foreign intelligence investigation. As Snowden revealed, the FISA court accepted the government’s argument that all Americans’ records are “relevant” because some relevant records are buried within them. It allowed the NSA to create a massive database of highly personal information without any individualized offer of proof.

A similar abandonment of case-by-case adjudication resulted from the FISA Amendments Act of 2008. These amendments removed the law’s requirement that the government obtain an order from the FISA court each time it collects communications between a foreign target and an American.

Today, when collecting such communications, the government need only implement procedures to ensure the program adheres to broad statutory requirements. The FISA court’s role is limited to approving these procedures; it has no role in judging how the government applies them in individual cases. Given the explosion in global communications, this means that millions of Americans’ phone calls, emails and text messages are collected by the NSA, no individualized court order required.

These judicial activities look nothing like the granting of warrants in criminal investigations. Judges in criminal cases do not issue orders allowing police officers to search any and all houses, on the ground that some surely contain evidence of a crime. Nor do judges secretly approve general guidelines for searching homes, leaving the application of them to the discretion of police officers.

There are good reasons the Constitution charges courts with adjudicating disputes between parties rather than pre-approving broad government programs. It preserves the separate functions of the branches of governments. And it ensures that courts do not take on a role that they are ill-equipped to handle. Time and again, as the Snowden archives reveal, the FISA court was blindsided by how the NSA actually implemented the vast programs the court approved.

Lawmakers have introduced bills to require greater disclosure of FISA court decisions and to establish a public advocate to argue against the government in some cases. Though helpful, these measures would not fully address the fundamental problem: The FISA court simply does not act like a court anymore.

Congress can fix this when it tackles surveillance legislation. Judicial approval should be required each time the executive branch seeks to acquire an American’s business records or communications with a foreign target. Challenging surveillance after the fact should be made easier too. That would require more robust disclosure and a dismantling of the jurisdictional barriers that stymie legal challenges to surveillance.

By shoring up the court’s role as an independent check on the executive branch, these reforms will better safeguard Americans’ privacy and prevent abuse. That was Congress’ original purpose in creating the FISA court. After decades of drift, it’s time to return the court to its constitutional moorings.

Faiza Patel and Elizabeth Goitein are authors of What Went Wrong With the FISA Court and directors of the Liberty and National Security program at the Brennan Center for Justice. They wrote this for the Los Angeles Times.

Photo: Penn State via Flickr

What Glenn Greenwald Gets Wrong

What Glenn Greenwald Gets Wrong

Earth to Glenn Greenwald: if you write a book slamming TheNew York Times, it’s naïve to expect favorable treatment in the New York Times Book Review. Been there, done that. Twice as a matter of fact.

On the first go-around, the NYTBR reviewer — a Times alumnus— described mine as a “nasty” book for hinting that name-brand journalists don’t always deal off the top of the deck. No inaccuracies cited, only nastiness.

Next the newspaper located the most appropriate reviewer for Joe Conason’s and my book The Hunting of the President in its own Washington bureau — the original source of the great Whitewater hoax our book deconstructed. That worthy accused us of partisan hackery on the authority of one of the few wildly inaccurate Whitewater stories the Times had itself actually corrected.

If you think we got a correction, however, you’d be mistaken.

So when Greenwald complains that his book No Place to Hide, detailing his and Edward Snowden’s exciting adventures in Hong Kong before the Boy Hero flew off to Moscow, got savaged by NYTBR reviewer Michael Kinsley, it’s easy to feel sympathetic. It’s no fun getting trashed in the only book review that really matters.

Kinsley’s biting wit and withering cynicism can be hard to take. But for all that, the review wasn’t entirely negative. It never denied the importance of Greenwald and Snowden’s revelations about government snooping, nor did it question the author’s journalistic integrity. “The Snowden leaks were important—a legitimate scoop,” he wrote, “and we might never have known about the NSA’s lawbreaking if it hadn’t been for them.”

True, Kinsley’s tone is far from worshipful. “His story is full of journalistic derring-do, mostly set in exotic Hong Kong,” he writes. “It’s a great yarn, which might be more entertaining if Greenwald himself didn’t come across as so unpleasant. Maybe he’s charming and generous in real life. But in No Place to Hide, Greenwald seems like a self-righteous sourpuss.”

Alas, anybody who’s experienced Greenwald’s dogged ad hominem argumentative style can identify. I’m rarely mistaken myself, but I do try not to impute evil motives to everybody who disagrees with me.

However, contrary to the army of syntactically-challenged Greenwald fans who turned his essay into an Internet cause célèbre, Kinsley never said the man should be jailed. He wrote that being invited to explain why not on Meet the Press hardly constitutes evidence of government oppression.

Indeed, also contrary to the Times public editor Margaret Sullivan, Kinsley nowhere “expressed a belief that many journalists find appalling: that news organizations should simply defer to the government” in deciding what secrets to reveal. He wrote that “the process of decision making—whatever it turns out to be—should openly tilt in favor of publication with minimal delay.”

Call me old-fashioned, but I do think the newspaper’s public editor should be more capable of fair paraphrase—an important journalistic skill.

However, what Kinsley’s provocative essay did very effectively was to question how seriously the author (and Edward Snowden) had thought through the logic of their position that when it comes to government secrets, it’s every man his own director of National Security.

And the answer seems to be, not too seriously at all. But then my view is that the Greenwald-Snowden revelations about NSA “metadata” hoarding made for exciting headlines and a Pulitzer Prize but little or no practical difference to people’s actual lives.

So that when Greenwald writes that “by ordering illegal eavesdropping, the president had committed crimes and should be held accountable,” I’m inclined to ask if he knows the meaning of “eavesdropping.”

It doesn’t mean storing phone and Internet records in a giant database; it means listening in on conversations or searching people’s hard drives, and to date there’s no evidence of that being done without court-ordered search warrants. I’d add that if Americans feel politically intimidated, they’ve got awfully noisy ways of showing it — especially those jerks swaggering around with assault rifles daring the feds to make something of it.

George Packer makes a related point in Prospect: “A friend from Iran who was jailed and tortured for having the wrong political beliefs, and who is now an American citizen, observed drily, ‘I prefer to be spied on by NSA.’”

So which of the two million-odd documents Edward Snowden swiped from the National Security Agency should end up in the newspaper, and who gets to decide? On that score, Kinsley’s otherwise crystal clear argument gets foggy. His point is that in a fallen world the government has legitimate secrets to protect: classic example, the date and location of the D-Day landings.

“In a democracy,” he writes “(which, pace Greenwald, we still are), that decision must ultimately be made by the government.”

Hence misunderstanding. Had he simply specified “Congress and the courts,” there would have been lot less hyperventilating.

Where’s an editor when you need one?

AFP Photo/Stan Honda

Lawsuit Targets Use Of Warrantless NSA Wiretaps In Criminal Prosecutions

Lawsuit Targets Use Of Warrantless NSA Wiretaps In Criminal Prosecutions

By Ken Dilanian, Tribune Washington Bureau

WASHINGTON — When federal prosecutors charged Colorado resident Jamshid Muhtorov in 2012 with providing support to a terrorist organization in his native Uzbekistan, court records suggested the FBI had secretly tapped his phones and read his emails.

But it wasn’t just the FBI. The Justice Department acknowledged in October that the National Security Agency had gathered evidence against Muhtorov under a 2008 law that authorizes foreign intelligence surveillance without warrants, much of it on the Internet. His lawyers have not been permitted to see the classified evidence.

In January, Muhtorov became the first defendant to challenge the constitutionality of that law, which allows the NSA to vacuum up phone and email conversations involving Americans as long as one end of the communication is abroad.

Civil liberties activists hope the case, and other court challenges in Illinois, Oregon and New York, will focus judicial scrutiny on whether the government can use the results of foreign intelligence gathering in domestic criminal prosecutions. Domestic wiretaps require a court order specifically for the person targeted; overseas wiretaps do not.

The issue has emerged since former NSA contractor Edward Snowden began leaking details of secret agency spying programs at home and abroad last summer, sparking a debate over privacy versus national security.

Activists have urged the White House to impose new restrictions on how the government handles information on U.S. citizens and legal residents that was inadvertently obtained through its warrantless surveillance, as a presidential task force recently recommended.

The NSA obtains much of the data via secret court orders to Google, Facebook and other U.S. technology companies under a program known as PRISM, one of the systems Snowden exposed.

U.S. officials say the communications of Americans are obtained unintentionally because it is often difficult to tell whether a Yahoo or Gmail address belongs to an American or a foreigner. In some cases, Americans are picked up communicating with foreigners or groups targeted by the NSA.

It’s unclear how much information the NSA keeps on Americans, or how it is used.

“This is a potentially important loophole in current wiretap law,” said Peter Swire, a privacy law expert who served on the presidential task force. “They shouldn’t be holding information about U.S. persons unrelated to an investigation.”

The NSA is using its authority to monitor foreigners overseas “as a pretext to monitor Americans here at home,” said Jameel Jaffer, an attorney for the American Civil Liberties Union who represents Muhtorov in challenging the surveillance.

“We now know the government has used (data on Americans) in criminal investigations,” he added. “But has it relied on the database to put people on the no-fly list, or to deny people security clearances, or to deny them government employment or government contracts?”

In its report to President Barack Obama in December, the task force recommended that information on or about Americans or legal residents should be destroyed unless it offered intelligence value or indicated a clear threat.

It also recommended that the NSA not use names of U.S. citizens, their email addresses or other potential identifiers to search its database, and suggested banning the use of transcripts from warrantless wiretaps in criminal courts.

Thus far the Obama administration has adopted none of those changes. James R. Clapper, director of national intelligence, recently acknowledged to Congress that NSA analysts sometimes used the name, email address or phone number of a U.S. citizen or legal resident to search material gathered under PRISM.

The FBI opposes new restrictions on the use of NSA data. Officials fear a rebuilding of the so-called wall that blocked intelligence and law enforcement agencies from sharing crucial clues and information before the Sept. 11, 2001, terrorist attacks and say the Muhtorov case proves the value of such sharing.

“Why would we want to deny ourselves access to information that is both relevant and lawfully collected?” asked a senior U.S. intelligence official not authorized to be quoted publicly.

The NSA collected more than 250 million Internet communications under PRISM in 2011, according to a declassified decision by the Foreign Intelligence Surveillance Court, which approves the court orders.

U.S. officials say they black out names of Americans that accidentally pop up, and that some of the collected data is never examined. The task force concluded, however, that the approach “does not adequately protect the legitimate privacy interests of United States persons when their communications are incidentally acquired.”

It’s unclear how often the NSA passes tips to law enforcement agencies about criminal activity unrelated to terrorism. Current and former intelligence officials say the practice is rare because the NSA doesn’t want to appear in court.

Muhtorov’s supporters say his case shows government overreaching.

Muhtorov, now 38, was resettled with his wife and two children in Aurora, Colo., in 2007 by the U.S. government after he fled harsh political repression in Uzbekistan. A 2005 State Department report described him as a human rights activist and said his sister had been arrested on trumped-up charges.

The FBI arrested Muhtorov in Chicago in 2012 as he prepared to travel to Turkey. Prosecutors say he planned to join the Islamic Jihad Union, a terrorist group in Uzbekistan with ties to al-Qaida.
In emails, Muhtorov swore allegiance to the Uzbek group and said he was “ready for any task, even at the risk of dying,” according to the criminal complaint. U.S. officials offered no evidence indicating he planned to attack American or Western interests.

The criminal complaint does not refer to the NSA, but it says the government discovered that Muhtorov was communicating with a foreign member of a terrorist group abroad; the NSA apparently was monitoring that person or group.

Based on that intelligence, federal authorities began monitoring Muhtorov using a secret national security warrant specific to him.

A Justice Department spokesman declined to comment on the case. Muhtorov’s lawyer, who was assigned by the public defender’s office, also declined to comment.

AFP Photo/Paul J. Richards

What The Proposed NSA Reforms Wouldn’t Do

What The Proposed NSA Reforms Wouldn’t Do

by Kara Brandeisky,ProPublica.

Ten months after Edward Snowden’s first disclosures, three main legislative proposals have emerged for surveillance reform: one from President Obama, one from the House Intelligence Committee, and one proposal favored by civil libertarians.

All the plans purport to end the bulk phone records collection program, but there are big differences—and a lot they don’t do. Here’s a rundown.

President Obama’s proposal

What it would do: As described, the president’s proposal would prohibit the collection of bulk phone records. Instead, the government would seek individualized court orders every time it wants American phone metadata. The government would get the data from telecoms, which already keep it for at least 18 months.

The proposal would solidify some changes Obama has already made: For instance, since January, analysts have needed to get court approval before searching the phone records database. Also, NSA analysts have only been able to obtain records from people who are two “hops” away from a surveillance target—a target’s friends’ friends—rather than three “hops” away. Obama’s proposal would make both of those policies law.

What it wouldn’t do: It’s hard to know. The White House hasn’t released the actual text of the legislation, and lawmakers have yet to introduce it in Congress. But privacy advocates do have a lot of questions.

One thing the president hasn’t proposed: ending the bulk phone records program now. He could do that without any vote if he simply stopped asking the Foreign Intelligence Surveillance Court to reauthorize the program, as Senator Patrick Leahy (D-VT) has suggested.

The secret surveillance court’s last 90-day order for Verizon phone records has expired. President Obama reportedly wants the court to renew the program at least one more time, to give Congress a chance to pass new legislation. Until Congress acts, the NSA will continue collecting American phone records in bulk.

Of course, if President Obama were to act unilaterally, another president could later reverse his changes. If Congress passes his proposal, his reforms will have the force of law.

The president’s proposal also appears to address only one of the NSA’s many surveillance programs. It doesn’t seem to change the FISA Amendments Act, which allows the NSA to sweep up foreigners’ communications without a warrant. In the process, the NSA “incidentally” collects Americans’ communications.

In January, Obama said he would ask the Justice Department to limit the government’s authority to use any American communications collected while targeting foreigners. The administration has not offered any details yet. However, even the Senate’s biggest NSA critics say the FISA Amendments Act has been an effective counterterrorism tool, so Congress is unlikely to repeal it.

FISA Transparency and Modernization Act

What it would do: Very little to limit surveillance. Introduced by House Intelligence Committee chairman Rep. Mike Rogers (R-MI) and ranking member C.A. Dutch Ruppersberger (D-MD), this bill represents the wishes of the NSA’s biggest defenders in Congress.

The bill nominally bans the government’s bulk collection of phone records. Like Obama’s plan, telecoms would keep the records, but this in proposal, the government could request the records without a court order.

The bill also says it would prohibit the government from indiscriminate collection of other kinds of data, including “library circulation records,” “firearm sales records,” and “tax return records.” But the government could still use search terms to get the records it wants.

What else it would do: Roll back current protections in the law. The legislation would no longer require that the government get a court order before obtaining American records. Instead, the secret surveillance court would review the privacy procedures before the Justice Department collects any records, and the court could also tell the government to stop collecting records after the fact.

Also, under current law, the government needs to show that records are related to foreign terrorism or clandestine intelligence activities. Rogers’ bill would change that standard, requiring the government to show that records are for an individual who is associated with a “foreign power” — a broad term that includes terrorist groups, foreign governments and foreign political groups.

If the bill passes, a lot would depend on how the secret surveillance court interprets it. For instance, what kinds of “selection terms” could the government use to search for records? The broader the search terms, the more likely it is that innocent people will get caught in the dragnet.

Finally, Rogers’ bill would not amend the FISA Amendments Act. “I don’t believe that foreign collection on foreign soil is something that we need to change,” Rogers said.

This bill has House Speaker John Boehner’s support.

USA Freedom Act

What it would do: A lot. First, the bill’s authors, Democratic senator Leahy and PATRIOT Act author Rep. James Sensenbrenner (R-WI) say the legislation would end all bulk collection of American records. To do so, they’d narrow the language in the PATRIOT Act to require that the government only collects records that are “relevant and material” to an authorized investigation. To qualify, an investigation must be related to foreign terrorism or clandestine activities, and the records must directly “pertain” to a foreign power.

The proposal would also close a so-called backdoor loophole that allows the NSA to search its databases for the content of Americans’ communications. Under the new bill, analysts would need an individualized warrant to access any domestic content collected “incidentally.”

In addition, the lawmakers would also tighten oversight of national security letters, a kind of administrative subpoena that lets the FBI obtain records related to “national security” without a court order. The idea is to make sure that the government can’t use the national security letters law to justify bulk collection of American records in the future.

What it wouldn’t do: The bill covers a lot of bases and has won the support of the ACLU, the Electronic Frontier Foundation, 142 representatives and 21 senators.

However, some worry that the bill does not unequivocally ban bulk collection of American records. Again, a lot depends on how the Foreign Intelligence Surveillance Court interprets the statute. While this bill’s language is narrower than current law, we now know the secret surveillance court has interpreted the PATRIOT Act very broadly. The EFF has suggested that the bill’s sponsors make their intent more explicit.

This bill has by far the most co-sponsors, but its prospects are uncertain — it was introduced in October, and it still hasn’t reached the floor.

Photo via Wikimedia Commons