Re: FISA Court Still Uncovering Surveillance Abuses By NSA, FBI
For 6 years, FISA Court never seen an application it turned down...
9,400 to Zero: For 6 Years, Spy Court Denied No Electronic Surveillance Applications
March 6, 2017 | The Foreign Intelligence Surveillance Court did not deny a single application out of the 9,400 the government submitted over the last six years on record (2010-2015) seeking authority “to conduct electronic surveillance for foreign intelligence purposes” under the terms of the Foreign Intelligence Surveillance Act, according to reports filed by the U.S. Justice Department.
The last time the court denied an electronic surveillance application under FISA was 2009. That year, the court denied one application outright and denied another in part. The latest annual report from the Justice Department to Congress on the disposition of FISA requests was delivered on April 28, 2016. Signed by then-Assistant Attorney General Peter J. Kadzik, it covers calendar year 2015. “[T]his report provides information regarding all applications made by the government during calendar year 2015 for authority to conduct electronic surveillance for foreign intelligence purposes under the Act,” Kadzik says in the first paragraph of the report.
This annual report—and those going back to 1996—are available at DOJ’s online Freedom of Information Act library. Although the court denied none of the government’s applications for electronic surveillance under FISA from 2010 through 2015, the court did modify some of those it approved and the government withdrew some of those it submitted. From 2010 through 2015, the government submitted a total of 9,400 applications to the Foreign Intelligence Surveillance Court seeking the authority to conduct electronic surveillance. Of those 9400, the court approved 9,391 and the government withdrew 9. The court also modified 217 of those it approved. It denied none.
In a July 29, 2013 letter to then-Senate Judiciary Chairman Patrick Leahy (D.-Vt.), Judge Reggie B. Walton, then the court’s presiding judge, explained why the court approved such a high rate of government applications to conduct electronic surveillance under FISA. The administration and the court go through a consultation process that starts when the administration submits a “proposed application” to the court’s staff. “[A] proposed application must be submitted by the government no later than seven days before the government seeks to have the matter entertained,” Walton wrote. “Upon the court’s receipt of a proposed application for an order under FISA,” the judge said, “a member of the court’s legal staff reviews the application and evaluates whether it meets the legal requirements under the statute. As part of this evaluation, a court attorney will often have one or more telephone conversations with the government to seek additional information and/or raise concerns about the application.”
The court attorney “then prepares a written analysis of the application for the duty judge.” “The judge typically makes a preliminary determination at that time about what course of action to take,” wrote Walton. “A staff attorney will then relay the judge’s inclination to the government, and the government will typically proceed by providing additional information, or submitting a final application (sometimes with amendments, at the government’s election) for the court’s ruling…” “In some cases,” wrote Walton, “the government may decide not to submit a final application, or to withdraw one that has been submitted, after learning that the judge does not intend to approve it. “The annual statistics provided to Congress by the Attorney General pursuant to 50 USC §§ 1807 and 1862(b)—frequently cited in press reports as a suggestion that the court’s approval rate of applications is over 99 percent—reflect only the number of final applications submitted to and acted on by the court,” wrote Walton. The court has eleven judges appointed by the chief justice of the Supreme Court. A 2014 Congressional Research Service report described its “non-adversarial fashion” of operating.
Democrat on FISA Last Week: ‘More and More Americans Are Getting Swept Up in the Searches’
March 6, 2017 – “More and more Americans are getting swept up in these (FISA) searches,” Sen. Ron Wyden (D-Oregon) told Congress last week.
“We are trying to legitimately go after foreign targets that are a threat to us. But as telecommunications systems become globally integrated, we’re getting more and more law-abiding citizens swept up.” Wyden was speaking at the confirmation hearing for former Sen. Dan Coates, nominated to serve as President Trump’s director of national security. At the same hearing, both Coates and Republican Sen. John Cornyn gave a spirited defense of the law that President Donald Trump now claims was used against him.
At the Feb. 28 hearing of the Senate Select Committee on Intelligence, Wyden told Coates, ‘You have said that if you’re confirmed, the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act would be your top legislative priority. Wyden continued: "For years, I and members of Congress have been asking for an estimate of how many innocent, law-abiding Americans’ communications are getting swept up in this collection. Will you commit to getting this number to this committee and the public before reauthorization?"
Coates responded: Yes, I do. I am going to do everything I can to work with Admiral Rogers and NSA to get you that number. I’ve been told it is an extremely complex process for a number of reasons. As I said, without classification, I don’t know what all these reasons are. (Coates earlier explained he had only recently received his security clearance.) I need to learn what they are, but I also need to share with Admiral Rogers the need, I think, to get this committee, not just those numbers, but all the information they need, in which to make a judgment as to the reauthorization. The intelligence community believes that reauthorization is extremely important. It’s a program that has provided a significant amount of intelligence relative to what foreign agents or individuals are trying to do to harm Americans. And so, you know, it has layers of oversight at all three levels of government, has been examined by the privacy civil liberties board, overseeing board, and supported by the FISA court. But this is something that you will be going through during this next year, and we want to make sure you have all of the information you feel you need to make adjustments that Congress decides to make.
Wyden asked Coates, “So you will commit to making sure we have the number of innocent Americans being swept up before the reauthorization. Will you commit to declassifying any secret legal interpretations related to FISA as well?” Coates said he would -- as long as declassification would not expose sensitive sources and methods.
Republicans defend FISA law
The water's always turbulent where two great rivers meet.