The Foreign Intelligence Surveillance Act of 1978 (FISA) was born from Watergate. It was designed to place the government’s targeted surveillance of any “U.S. person” suspected of involvement with international terror organizations under Congressional and judicial oversight.
Under FISA, there were limits on how government could deploy surveillance against suspects inside the United States. Warrantless surveillance of a suspected terrorist in the U.S. who’s not an American citizen could go on for a year before the Department of Justice (DOJ) and related watchdog agencies like the National Security Administration (NSA) and FBI were forced to obtain judicial authorization. If the suspect was an American citizen, the DOJ had to get a court order within three days after the government began spying on him.
In 1978, the court that began giving out those permission slips was consolidated into a single, purpose-made entity: the Foreign Intelligence Surveillance Court (FISC). Ever since, in order for the DOJ to obtain a FISA warrant, it has to submit a request to a FISC judge. Except when a third party files an amicus curiae brief objecting to, or supporting, the DOJ’s request, the Federal government is the only party before the judge. There are 11 FISC judges, but only one presides over each individual DOJ surveillance request. The public doesn’t see what goes on in the FISC deliberations. It’s a secret court. By law, its records and opinions can be kept secret.
FISA has become a rubber stamp for secret government surveillance of regular Americans, and the FISC has become a permission-slip clearinghouse. Since Sept. 11, 2001, “judicial oversight” has really meant “judicial blessing.”
The Administration of President George W. Bush had some rocky encounters with the FISC, largely because of media reports that outed the extent of then-Attorney General John Ashcroft’s surveillance ambitions. But Bush’s expansion of FISA powers with the Patriot Act, which amended the FISA Act to break down the standing distinction between “terrorist” and “criminal,” as well as the Republican-backed Protect America Act of 2007, which opened overseas communications to FISA’s spy scrutiny, gave the Federal government everything it needed to get away with indiscriminate, secret surveillance of just about everyone living in the United States.
The door was standing ajar, and Bush threw it wide open. Now, his successor, President Barack Obama, has blasted through it like the Kool-Aid man smashing through a brick wall.
Ever since FISA was passed, the Feds have made 33,900 surveillance requests. They’ve walked away with nothing 11 times. They’ve succeeded 99.97 percent of the time in getting what they wanted. Said differently, the DOJ had all its ducks in a row 33,889 times in making a case for spying on someone — or on millions of people (what’s the difference anymore?) — before it approached FISC with a surveillance plan. That represents a sterling commitment to due diligence and development of probable cause on the part of the DOJ before submitting to the keen blade of judicial oversight. Right?
So said a former security lawyer under the Bush Administration, who told The Wall Street Journal that the DOJ rigorously vets its applications (like the one that created the PRISM program and secretly plugged into nearly every major online service provider in the country) before approaching FISC, hat in hand.
“We’ve got Congressional oversight and judicial oversight,” Obama said last week. “And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.”
If you believe that the Obama Administration — or that of his predecessor — has consistently been making sound Constitutional arguments that, on the merits, have persuaded one FISC judge after another to authorize PRISM, or the mass mining of cellphone metadata, or the DOJ surveillance of people before it even has a suspect (or a crime), well… you’ve been drinking the Kool-Aid.