FISA courts are rubber stamp courts

Paul Schwietering
By Paul Schwietering

In March, at a U.S. Senate hearing, Senator Ron Wyden of Oregon asked James R. Clapper, Jr., the Director of National Intelligence, “Does the National Security Agency collect any type of data at all on millions or hundreds of millions of Americans?”  “No sir,” Mr. Clapper replied.  “Not wittingly.”  The question and the answer are matters of public record.

According to The New York Times, “Mr. Wyden said on Tuesday (June 11) that he had sent his question to Mr. Clapper’s office a day before the hearing, and gave his office a chance to correct the misstatement after the hearing, but to no avail.”

“In an interview Sunday (June 9th) with NBC News, Mr. Clapper acknowledged that his answer had been problematic, calling it ‘the least untruthful’ answer he could give.”  Instead of lying in a hearing of the U.S. Senate, perhaps Mr. Clapper should have considered telling the truth.  That really would have been “the least untruthful” answer he could give.

What I find most interesting about the issue is that, according to The Times, “Mr. Wyden said he pressed Mr. Clapper on the matter because he was dissatisfied with what he felt were misleading answers from Gen. Keith B. Alexander, the National Security Agency Director.”

As luck would have it, on Wednesday, June 12, none other than Gen. Keith B. Alexander, who directs both the National Security Agency and the United States Cyber Command, testified again before the U.S. Senate.  According to The Times, Alexander “told skeptical members of the Senate Appropriations Committee that his agency was doing exactly what Congress authorized after the attacks of September 11, 2001.

“General Alexander said he ‘welcomed debate’ over the legal justification for the program because ‘what we’re doing to protect American citizens here is the right thing.’  He said the agency ‘takes great pride in protecting this nation and our civil liberties and privacy under the oversight of Congress and the courts.’”

The courts Alexander was referring to are not the regular federal courts, but the “secret” FISA (Foreign Intelligence Surveillance Act) courts.

According to The New York Times (“Secret Ruling Put Tech Firms in Data Bind” Page A1, June 14) “Lawyers who handle national security requests for tech companies say they rarely fight in court but try to negotiate privately with the government (if they think the surveillance is unconstitutional), even if they ultimately have to comply.”

“‘The tech companies try to pick their battles,’ said Stephen I. Vladeck, a law professor at American University who has challenged government counter-terrorism surveillance.”  Last year, the government made 1,856 surveillance requests to the FISA courts.  They were all approved.

According to The Times, “FISA requests can be as broad as seeking court approval to ask a company to turn over information about the online activities of people in a certain country.  Between 2008 and 2012, only two of 8,591 applications were rejected, according to data gathered by the Electronic Privacy Information Center, a nonprofit research center in Washington.  Without obtaining court approval, intelligence agents can then add more specific requests – like names of individuals and additional Internet services to track – every day for a year.”

According to The Times, (June 13, Page A18) “Public opinion, judging by two polls with differently worded questions that yielded different results, is divided over the government’s tracking of the communications of Americans.  In a Pew Research Center/Washington Post poll conducted June 6-9, 56 percent of Americans said the N.S.A.’s program tracking the phone records of “millions of Americans” was an acceptable way to investigate terrorism, while 41 percent said it was unacceptable.  But a CBS News poll conducted June 9-10, which instead asked about collecting phone records of ‘ordinary Americans’ found that just 38 percent supported it and 58 percent opposed it.

Lawrence Lessig, an author, attorney and university professor, appeared recently on “Moyers & Company” (a public affairs program on PBS) and indicated that most of the FISA judges lack the technical expertise to know if a surveillance request is appropriate to the information the government claims to be seeking, or if the government is asking for an overly broad program to obtain the information.  His suggested remedy was that each FISA court should have a technician who has expertise in these data-gathering programs and can inform the judge when a less sweeping program would suffice.

If Lessig is correct, it makes one wonder why the government is using the most broad and sweeping programs possible and what the government intends to do with all the extraneous data it has collected.

It shouldn’t surprise anybody that the FISA courts are rubber stamps.  Who would want to risk having the N.S.A. point the finger of blame at them if a terrorist attack occurred?  Also, unfortunately, it should no longer surprise us when government officials lie to Congress (although it would be better if they simply said they couldn’t answer a given question on grounds of national security).  Given these facts, Congress has a duty to be especially vigilant in its oversight of these matters which affect our civil liberties and our constitutional rights.

Paul Schwietering is a former Democratic state central committeeman for the 14th state senate district.