When Big Brother Listens

The Surveillance State Is as Strong as Ever

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Posted on Aug 4, 2013

Flickr/jonathan mcintosh

By Bill Blum

Don’t let the acquittal of Army Pfc. Bradley Manning on aiding the enemy charges or the temporary asylumRussia granted to NSA whistle-blower Edward Snowden fool you. With American embassies and diplomatic missions on high alert across the Middle East and North Africa, the surveillance state remains as strong as ever, supported by leaders of both political parties and bolstered by a growing body of constitutional law crafted largely in secret by the federal court that oversees the Foreign Intelligence Surveillance Act. 

This isn’t to minimize Manning’s limited victory or to underestimate the impact of Snowden’s efforts to avoid extradition. Under Section 104 of the Uniform Code of Military Justice, aiding the enemy is the rough equivalent of treason (as defined in Article III of the Constitution). Like treason, it carries a potential death sentence, though in Manning’s case military prosecutors sought only a life term.

Still, Manning faces up to 136 years in prison after being convicted on 19 other charges, including six violations of the Espionage Act of 1917. In all likelihood, his sentence will be less than that, but he’ll still probably spend decades behind bars. A similar fate no doubt awaits Snowden should he one day fall out of favor with his Russian hosts and be returned to the U.S.

The harsh treatment of whistle-blowers will likely continue into the foreseeable future in pace with the needs and expansion of the surveillance state itself. In the aftermath of last month’s defeat of a proposed amendment to the Patriot Act that would have placed new limits on the National Security Agency’s ability to track phone records, there is little on the political horizon to halt the expansion.

Legally too the avenues for challenging the surveillance state are dwindling under the authority of the Foreign Intelligence Surveillance Court. Established in 1978, the court is a unique judicial body, consisting of 11 U.S. District Court judges appointed to serve staggered seven-year terms by the chief justice of the Supreme Court without Senate confirmation. All of the surveillance court’s current members were appointed by Chief Justice John Roberts. Ten are Republicans; nearly all have had legal experience working in the executive branch of the federal government or as prosecutors.

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The FISA Court’s hearings are held in secret on an “ex parte” basis without notice to the targets of surveillance, and the tribunal’s orders are classified. Last year, the government filed 1,789 surveillance applications with the court. One application was subsequently withdrawn; all the others were granted, albeit with 40 modifications.

The government can appeal FISA Court decisions (in some instances, an Internet provider objecting to surveillance applications can too) to the FISA Court of Review, a three-judge panel similarly appointed by the chief justice. The Court of Review also conducts its proceedings in secret and has sole discretion to release its rulings to the public. Its decisions can be appealed only to the Supreme Court. None of them, however, have been appealed thus far.

Although the FISA Court and the Court of Review reportedly have prepared more than a dozen substantive rulings over the years, until last week only two highly redacted opinions had been publicly released, both by the Court of Review—In re: Sealed Case, found in the official reports of federal appellate court decisions at 310 F.3d 717 (2002), and In re: Directives, found at 551 F.3d 1004 (2008).

Taken together, the two decisions uphold FISA’s constitutionality and recognize a constitutional doctrine not yet decided on by the Supreme Court—that there is a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. The Directives case, which technically dealt with the Protect America Act that was later repealed and replaced by the FISA Amendment Act of 2008, went even further. It held that notwithstanding a formal foreign intelligence exception to the Fourth Amendment, NSA’s spying operations are constitutionally permissible under a variety of so-called “special needs” cases decided by the Supreme Court that have authorized drug and alcohol testing on high-school students and railroad workers without warrants or probable cause. 

Last week, in a clumsy attempt to allay growing public skepticism about its spying operations, the Obama administration declassified a redacted version of the FISA Court decision that approved the now-infamous order issued last April directing Verizon Business Services to turn over bulk records of all phone calls made inside the U.S. and between the U.S. and abroad to the FBI. The administration also declassified Justice Department legal memos from 2009 and 2011 on the legality of phone record collection. 

Contrary to the administration’s hopes, the released material is anything but encouraging. The decision—written by former FISA Court Judge Roger Vinson, a senior federal District Court judge from Florida who gained notoriety in 2011 for declaring the entire Affordable Care Act unconstitutional—sheds no light on why the bulk collection order issued to Verizon, and presumably duplicated in orders served on other phone companies, was needed to further specific investigations into international terrorism. And the analyses only underscore the questionable legal reasoning previously adopted in the Sealed and Directives cases.

In the meantime, according to Edward Snowden, as reported by journalist Glenn Greenwald of The Guardian, the NSA’s spying techniques have become ever more sophisticated with the implementation of the XKeyscore program, enabling agency analysts to search without prior authorization through vast databases containing emails, online chats and the browsing histories of millions of individuals. 

In another era, the Supreme Court might have been expected to intervene in the controversy and restore a sensible constitutional balance between the nation’s legitimate need for security and the right of its citizens to privacy under the Fourth Amendment. But this isn’t another era. Just last term, in a 5-4 majority opinion written by Justice Samuel Alito, the high court dismissed a FISA challenge brought by Amnesty International and other human rights groups in the case Clapper v. Amnesty International, reasoning that none of the organizations had suffered actual legal harm, and thus lacked “standing” to sue. 

Whether the present Supreme Court would intervene on the side of privacy were it disposed to get involved is dubious, of course. But one thing remains certain: Unless and until the high court gets involved, our Fourth Amendment rights will continue to be shaped by another court that meets behind locked doors and publishes its rulings only when it sees fit.

So whistle-blowers and everyone else take heed, and welcome to the new era. It looks like it’s here to stay.

un-Constitutional Acts are Classified

File photo, U.S. Capitol building. (photo: file)

Members of Congress Denied Oversight on NSA Surveillance

By Glenn Greenwald, Guardian UK

04 August 13

Documents provided by two House members demonstrate how they are blocked from exercising any oversight over domestic surveillance.

embers of Congress have been repeatedly thwarted when attempting to learn basic information about the National Security Agency (NSA) and the secret FISA court which authorizes its activities, documents provided by two House members demonstrate.

From the beginning of the NSA controversy, the agency's defenders have insisted that Congress is aware of the disclosed programs and exercises robust supervision over them. "These programs are subject to congressional oversight and congressional reauthorization and congressional debate," President Obama said the day after the first story on NSA bulk collection of phone records was published in this space. "And if there are members of Congress who feel differently, then they should speak up."

But members of Congress, including those in Obama's party, have flatly denied knowing about them. On MSNBC on Wednesday night, Sen. Richard Blumenthal (D-Ct) was asked by host Chris Hayes: "How much are you learning about what the government that you are charged with overseeing and holding accountable is doing from the newspaper and how much of this do you know?" The Senator's reply:

The revelations about the magnitude, the scope and scale of these surveillances, the metadata and the invasive actions surveillance of social media Web sites were indeed revelations to me."

But it is not merely that members of Congress are unaware of the very existence of these programs, let alone their capabilities. Beyond that, members who seek out basic information - including about NSA programs they are required to vote on and FISA court (FISC) rulings on the legality of those programs - find that they are unable to obtain it.

Two House members, GOP Rep. Morgan Griffith of Virginia and Democratic Rep. Alan Grayson of Florida, have provided the Guardian with numerous letters and emails documenting their persistent, and unsuccessful, efforts to learn about NSA programs and relevant FISA court rulings.

"If I can't get basic information about these programs, then I'm not able to do my job", Rep. Griffith told me. A practicing lawyer before being elected to Congress, he said that his job includes "making decisions about whether these programs should be funded, but also an oath to safeguard the Constitution and the Bill of Rights, which includes the Fourth Amendment."

Rep. Griffith requested information about the NSA from the House Intelligence Committee six weeks ago, on June 25. He asked for "access to the classified FISA court order(s) referenced on Meet the Press this past weekend": a reference to my raising with host David Gregory the still-secret 2011 86-page ruling from the FISA court that found substantial parts of NSA domestic spying to be in violation of the Fourth Amendment as well as governing surveillance statutes.

In that same June 25 letter, Rep. Griffith also requested the semi-annual FISC "reviews and critiques" of the NSA. He stated the rationale for his request: "I took an oath to uphold the United States Constitution, and I intend to do so."

Almost three weeks later, on July 12, Rep. Griffith requested additional information from the Intelligence Committee based on press accounts he had read aboutYahoo's unsuccessful efforts in court to resist joining the NSA's PRISM program. He specifically wanted to review the arguments made by Yahoo and the DOJ, as well as the FISC's ruling requiring Yahoo to participate in PRISM.

On July 22, he wrote another letter to the Committee seeking information. This time, it was prompted by press reports that that the FISA court had renewed its order compelling Verizon to turn over all phone records to the NSA. Rep. Griffith requested access to that court ruling.

The Congressman received no response to any of his requests. With a House vote looming on whether to defund the NSA's bulk collection program - it was scheduled for July 25 - he felt he needed the information more urgently than ever. He recounted his thinking to me: "How can I responsibly vote on a program I know very little about?"

On July 23, he wrote another letter to the Committee, noting that it had been four weeks since his original request, and several weeks since his subsequent ones. To date, six weeks since he first asked, he still has received no response to any of his requests (the letters sent by Rep. Griffith can be seen here).

"I know many of my constituents will ask about this when I go home," he said, referring to the August recess when many members of Congress meet with those they represent. "Now that I won't get anything until at least September, what am I supposed to tell them? How can I talk about NSA actions I can't learn anything about except from press accounts?"

Congressman Grayson has had very similar experiences, except that he sometimes did receive responses to his requests: negative ones.

On June 19, Grayson wrote to the House Intelligence Committee requesting several documents relating to media accounts about the NSA. Included among them were FISA court opinions directing the collection of telephone records for Americans, as well as documents relating to the PRISM program.

But just over four weeks later, the Chairman of the Committee, GOP Rep. Mike Rogers, wrote to Grayson informing him that his requests had been denied by a Committee "voice vote".

In a follow-up email exchange, a staff member for Grayson wrote to the Chairman, advising him that Congressman Grayson had "discussed the committee's decision with Ranking Member [Dutch] Ruppersberger on the floor last night, and he told the Congressman that he was unaware of any committee action on this matter." Grayson wanted to know how a voice vote denying him access to these documents could have taken place without the knowledge of the ranking member on the Committee, and asked: "can you please share with us the recorded vote, Member-by-Member?" The reply from this Committee was as follows:

Thanks for your inquiry. The full Committee attends Business Meetings. At our July 18, 2013 Business Meeting, there were seven Democrat Members and nine Republican Members in attendance. The transcript is classified."

To date, neither Griffith nor Grayson has received any of the documents they requested. Correspondence between Grayson and the Committee - with names of staff members and email addresses redacted - can be read here.

Denial of access for members of Congress to basic information about the NSA and the FISC appears to be common. Justin Amash, the GOP representative who, along with Democratic Rep. John Conyers, co-sponsored the amendment to ban the NSA's bulk collection of Americans' phone records, told CNN on July 31: "I, as a member of Congress, can't get access to the court opinions. I have to beg for access, and I'm denied it if I - if I make that request."

It is the Intelligence Committees of both the House and Senate that exercise primary oversight over the NSA. But as I noted last week, both Committees are, with the exception of a handful of members, notoriously beholden to the NSA and the intelligence community generally.

Its members typically receive much larger contributions from the defense and surveillance industries than non-Committee members. And the two Committee Chairs - Democrat Dianne Feinstein in the Senate and Republican Mike Rogers in the House - are two of the most steadfast NSA loyalists in Congress. The senior Democrat on the House Committee is ardent NSA defender Dutch Ruppersberger, whose district not only includes NSA headquarters in Fort Meade, but who is also himself the second-largest recipient of defense/intelligence industry cash.

Moreover, even when members of the Intelligence Committee learn of what they believe to be serious abuses by the NSA, they are barred by law from informing the public. Two Democratic Committee members in the Senate, Ron Wyden and Mark Udall,spent years warning Americans that they would be "stunned to learn" of the radical interpretations of secret law the Obama administration had adopted in the secret FISA court to vest themselves with extremist surveillance powers.

Yet the two Senators, prohibited by law from talking about it, concealed what they had discovered. It took Edward Snowden's whistleblowing for Americans to learn what those two Intelligence Committee members were so dramatically warning them about.

Finally, all members of Congress - not just those on the Intelligence Committees - are responsible for making choices about the NSA and for protecting the privacy rights and other Constitutional guarantees of Americans. "I did not take an oath to defer to the Intelligence Committee," Rep. Griffith told me. "My oath is to make informed decisions, and I can't do my job when I can't get even the most basic information about these programs."

In early July, Grayson had staffers distribute to House members several slides published by the Guardian about NSA programs as part of Grayson's efforts to trigger debate in Congress. But, according to one staff member, Grayson's office was quickly told by the House Intelligence Committee that those slides were still classified, despite having been published and discussed in the media, and directed Grayson to cease distribution or discussion of those materials in the House, warning that he could face sanctions if he continued.

It has been widely noted that the supremely rubber-stamping FISA court constitutes NSA "oversight" in name only, and that the Intelligence Committees are captured by the agency and constrained to act even if they were inclined to. Whatever else is true, members of Congress in general clearly know next to nothing about the NSA and the FISA court beyond what they read in the media, and those who try to rectify that are being actively blocked from finding out.