By Eric
Lichtblau, New York Times
WASHINGTON -
In more than a dozen classified rulings, the nation’s surveillance court has
created a secret body of law giving the National Security Agency the power to amass
vast collections of data on Americans while pursuing not only terrorism
suspects, but also people possibly involved in nuclear proliferation, espionage
and cyberattacks, officials say.
The rulings, some nearly 100 pages
long, reveal that the court has taken on a much more expansive role by
regularly assessing broad constitutional questions and establishing important
judicial precedents, with almost no public scrutiny, according to current and
former officials familiar with the court’s classified decisions.
The 11-member Foreign Intelligence
Surveillance Court, known as the FISA court, was once mostly focused on
approving case-by-case wiretapping orders. But since major changes in
legislation and greater judicial oversight of
intelligence operations were instituted six years ago, it has
quietly become almost a parallel Supreme Court, serving as the ultimate arbiter
on surveillance issues and delivering opinions that will most likely shape
intelligence practices for years to come, the officials said.
Last month, a former National Security
Agency contractor, Edward J. Snowden, leaked a classified order from the FISA
court, which authorized the collection of all phone-tracing
data from Verizon business customers. But the court’s still-secret
decisions go far beyond any single surveillance order, the officials said.
“We’ve seen a growing body of law from
the court,” a former intelligence official said. “What you have is a common law
that develops where the court is issuing orders involving particular types of
surveillance, particular types of targets.”
In one of the court’s most important
decisions, the judges have expanded the use in terrorism cases of a legal
principle known as the “special needs” doctrine and carved out an exception to
the Fourth Amendment’s requirement of a warrant for searches and seizures, the
officials said.
The special needs doctrine was
originally established in 1989 by the Supreme Court in a ruling allowing the
drug testing of railway workers, finding that a minimal intrusion on privacy
was justified by the government’s need to combat an overriding public danger.
Applying that concept more broadly, the FISA judges have ruled that the
N.S.A.’s collection and examination of Americans’ communications data to track
possible terrorists does not run afoul of the Fourth Amendment, the officials
said.
That legal interpretation is
significant, several outside legal experts said, because it uses a relatively
narrow area of the law — used to justify airport screenings, for instance, or
drunken-driving checkpoints — and applies it much more broadly, in secret, to
the wholesale collection of communications in pursuit of terrorism suspects.
“It seems like a legal stretch,” William C. Banks, a national security law expert
at Syracuse University, said in response to a description of the decision.
“It’s another way of tilting the scales toward the government in its access to
all this data.”
While President Obama and his
intelligence advisers have spoken of the surveillance programs leaked by Mr.
Snowden mainly in terms of combating
terrorism, the court has also interpreted the law in ways that
extend into other national security concerns. In one recent case, for instance,
intelligence officials were able to get access to an e-mail attachment sent
within the United States because they said they were worried that the e-mail
contained a schematic drawing or a diagram possibly connected to Iran’s nuclear program.
In the past, that probably would have
required a court warrant because the suspicious e-mail involved American
communications. In this case, however, a little-noticed provision in a 2008
law, expanding the definition of “foreign intelligence” to include “weapons of
mass destruction,” was used to justify access to the message.
The court’s use of that language has
allowed intelligence officials to get wider access to data and communications
that they believe may be linked to nuclear proliferation, the officials said.
They added that other secret findings had eased access to data on espionage,
cyberattacks and other possible threats connected to foreign intelligence.
“The definition of ‘foreign
intelligence’ is very broad,” another former intelligence official said in an
interview. “An espionage target, a nuclear proliferation target, that all falls
within FISA, and the court has signed off on that.”
The official, like a half-dozen other
current and former national security officials, discussed the court’s rulings
and the general trends they have established on the condition of anonymity
because they are classified. Judges on the FISA court refused to comment on the
scope and volume of their decisions.
Unlike the Supreme Court, the FISA
court hears from only one side in the case — the government — and its findings
are almost never made public.
A Court of Review is empaneled to hear appeals, but that is known to have
happened only a handful of times in the court’s history, and no case has ever
been taken to the Supreme Court. In fact, it is not clear in all circumstances
whether Internet and phone companies that are turning over the reams of data
even have the right to appear before the FISA court.
Created by Congress in 1978 as a check
against wiretapping abuses by the government, the court meets in a secure,
nondescript room in the federal courthouse in Washington. All of the current 11
judges, who serve seven-year terms, were appointed to the special court by
Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench
by Republican presidents. Most hail from districts outside the capital and come
in rotating shifts to hear surveillance applications; a single judge signs most
surveillance orders, which totaled nearly 1,800 last year. None of the requests
from the intelligence agencies was denied, according to the court.
Beyond broader legal rulings, the
judges have had to resolve questions about newer types of technology, like
video conferencing, and how and when the government can get access to them, the
officials said.
The judges have also had to intervene repeatedly
when private Internet and phone companies, which provide much of the data to
the N.S.A., have raised concerns that the government is overreaching in its
demands for records or when the government itself reports that it has
inadvertently collected more data than was authorized, the officials said. In
such cases, the court has repeatedly ordered the N.S.A. to destroy the Internet
or phone data that was improperly collected, the officials said.
The officials said one central concept
connects a number of the court’s opinions. The judges have concluded that the
mere collection of enormous volumes of “metadata” — facts like the time of
phone calls and the numbers dialed, but not the content of conversations — does
not violate the Fourth Amendment, as long as the government establishes a valid
reason under national security regulations before taking the next step of
actually examining the contents of an American’s communications.
This concept is rooted partly in the
“special needs” provision the court has embraced. “The basic idea is that it’s
O.K. to create this huge pond of data,” a third official said, “but you have to
establish a reason to stick your pole in the water and start fishing.”
Under the new procedures passed by
Congress in 2008 in the FISA Amendments Act, even the collection of metadata
must be considered “relevant” to a terrorism investigation or other
intelligence activities.
The court has indicated that while
individual pieces of data may not appear “relevant” to a terrorism investigation,
the total picture that the bits of data create may in fact be relevant,
according to the officials with knowledge of the decisions.
Geoffrey R. Stone, a professor of constitutional
law at the University of Chicago, said he was troubled by the idea that the
court is creating a significant body of law without hearing from anyone outside
the government, forgoing the adversarial system that is a staple of the
American justice system. “That whole notion is missing in this process,” he
said.
The FISA judges have bristled at
criticism that they are a rubber stamp for the government, occasionally
speaking out to say they apply rigor in their scrutiny of government requests.
Most of the surveillance operations involve the N.S.A., an eavesdropping
behemoth that has listening posts around the world. Its role in gathering
intelligence within the United States has grown enormously since the Sept. 11
attacks.
Soon after, President George W. Bush, under a secret wiretapping program that circumvented the FISA court, authorized the N.S.A. to collect metadata and in some cases listen in on foreign calls to or from the United States. After a heated debate, the essential elements of the Bush program were put into law by Congress in 2007, but with greater involvement by the FISA court.
Soon after, President George W. Bush, under a secret wiretapping program that circumvented the FISA court, authorized the N.S.A. to collect metadata and in some cases listen in on foreign calls to or from the United States. After a heated debate, the essential elements of the Bush program were put into law by Congress in 2007, but with greater involvement by the FISA court.
Even
before the leaks by Mr. Snowden, members of Congress and civil liberties
advocates had been pressing for declassifying and publicly releasing court decisions,
perhaps in summary form.
Reggie
B. Walton, the FISA court’s presiding judge, wrote in March that he recognized
the “potential benefit
of better informing the public” about the court’s decisions. But, he
said, there are “serious obstacles” to doing so because of the potential for
misunderstanding caused by omitting classified details.
Gen.
Keith B. Alexander, the N.S.A. director, was noncommital when he was pressed at
a Senate hearing in June to put out some version of the court’s decisions.
While
he pledged to try to make more decisions public, he said, “I don’t want to
jeopardize the security of Americans by making a mistake in saying, ‘Yes, we’re
going to do all that.’ ”
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