Domestic Spying Program to Get Judicial Oversight

Alchemist253 writes "The U.S. Justice Department has consented to court oversight (albeit via a secret court) of the controversial domestic wiretapping program (the "Terrorist Surveillance Program") previously discussed at length on Slashdot. From the article, "[oversight] authority has been given to the Foreign Intelligence Surveillance Court and [it] already has approved one request for monitoring the communications of a person believed to be linked to al Qaeda or an associated terror group.""

For more information:

[the_REAL_sam]

This link explained alot for me. Too bad it's a secret court, but it's better than no court, and at least it's a court within the judicial branch of the federal government.

http://www.fjc.gov/history/home.nsf/page/fisc_bdy! OpenDocument&Click= [fjc.gov]


Foreign Intelligence Surveillance Court

Congress in 1978 established the Foreign Intelligence Surveillance Court as a special court and authorized the Chief Justice of the United States to designate seven federal district court judges to review applications for warrants related to national security investigations. Judges serve for staggered, non-renewable terms of no more than seven years, and must be from different judicial circuits. The provisions for the court were part of the Foreign Intelligence Surveillance Act (92 Stat. 1783), which required the government, before it commenced certain kinds of intelligence gathering operations within the United States, to obtain a judicial warrant similar to that required in criminal investigations. The legislation was a response to a report of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities (the "Church Committee"), which detailed allegations of executive branch abuses of its authority to conduct domestic electronic surveillance in the interest of national security. Congress also was responding to the Supreme Court's suggestion in a 1972 case that under the Fourth Amendment some kind of judicial warrant might be required to conduct national security related investigations.
Warrant applications under the Foreign Intelligence Surveillance Act are drafted by attorneys in the General Counsel's Office at the National Security Agency at the request of an officer of one of the federal intelligence agencies. Each application must contain the Attorney General's certification that the target of the proposed surveillance is either a "foreign power" or "the agent of a foreign power" and, in the case of a U.S. citizen or resident alien, that the target may be involved in the commission of a crime.
The judges of the Foreign Intelligence Surveillance Court travel to Washington, D.C., to hear warrant applications on a rotating basis. To ensure that the court can convene on short notice, at least one of the judges is required to be a member of the U.S. District Court for the District of Columbia. The act of 1978 also established a Foreign Intelligence Surveillance Court of Review, presided over by three district or appeals court judges designated by the Chief Justice, to review, at the government's request, the decisions the Foreign Intelligence Surveillance Court. Because of the almost perfect record of the Department of Justice in obtaining the surveillance warrants and other powers it requested from the Foreign Intelligence Surveillance Court, the review court had no occasion to meet until 2002. The USA Patriot Act of 2001 (115 Stat. 272) expanded the time periods for which the Foreign Intelligence Surveillance Court can authorize surveillance and increased the number of judges serving the court from seven to eleven.

Requests denied?

[Bowling Moses]

"[oversight] authority has been given to the Foreign Intelligence Surveillance Court and [it] already has approved one request for monitoring the communications of a person believed to be linked to al Qaeda or an associated terror group.""

That's nice. How many requests has this court denied, or is it just a rubber stamp like FISA [epic.org]?

THIS PROGRAM MUST END!

[crhylove]

FUCK OVERSIGHT! I want this program OVER. Unless I am an actual proven threat in a court of law, there should be nobody listening to anything I'm doing.

rhY

SECRET Court

[Jeremiah Cornelius]

To go with warrantless secret spying, secret charges in violation of secret laws on the secret evidence that resuts in secret detentions.

"Secrecy" and "Oversight" are oxymoronic.

Not so much...

[StevenMaurer]

According to his letter [tpmmuckraker.com], Gonzalez hasn't actually subjected the program to judicial oversight. What he's done is gone judge-shopping to find a single judge to declare the entire program authorized.

The problem is, that's not how warrants work. Warrants have to be specific and time limited - to avoid exactly the behavior that Gonzalez in engaging in: blanket invasion into the privacy of all Americans without any legitimate reason to think they're doing anything wrong.

Remember: the laws we have on civil liberties aren't there to protect the guilty. They're there to protect the innocent, namely us.

Re:But what about the illegal wiretapping?

[Anonymous McCartneyf]

Yes, wiretaps require court orders. Yes, it's good that the gov. is asking for warrants. But it wasn't that long ago when the executive branch claimed it didn't need warrants--check the /. link in the summary.

Re:So it was 100% legal before ...

[Anonymous Coward]

The FISA courts have existed since the 70s and have passed judicial review of their constitutionality. It is useful to remember that Congress has the authority to create and destroy any court other than the Supreme Court and that there is nothing in the Constitution that says that public scrutiny of warrants are required. The Constitution only says that a judge appointed by the President and confirmed by the Senate must issue the warrants:

no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Nothing here says that the public has to be informed. Personally, I think the FISA courts are a good thing but we have to be extraordinarily careful with them. They still have the checks and balances required by the Constitution but they don't have a people's check (i.e. public opinion determining how they are implemented). FISA courts were designed to operate against foreign enemies of the US (such as spies and terrorists). There is a legitimate need for secrecy here. Since the people's check was returned for trials these FISA courts are legitimate (since they don't have the authority to run trials). Any trial will still be a public proceeding.

Re:For more information:

[Martin Blank]

Possible but not likely. However, one term on the FISC (Claude Hilton) is due to expire in 2007. Two more are set for next year, two for 2009, one in 2010, two in 2011, one in 2012, and two in 2013 for the FISC. The Court of Review has vacancies coming in 2008, 2010, and 2012. All terms expire on 18 May of their respective years. All current judges would have been appointed by Rehnquist before he died.

Foreign Intelligence Surveillance Court 2006 Membership [fas.org]

Re:But what about the illegal wiretapping?

[Ardeaem]

The President has clearly said he is not breaking the law, and despite what the liberal media is telling you, each and every wiretap still requires an warrant

Here you go, about half-way down at www.whitehouse.gov/news/releases/2004/04/20040420- 2.html

Bush said this BEFORE he got caught doing wiretaps without warrants. I agree, wiretaps DO require warrants, but Bush has claimed that he doesn't need them (the quote in the parent post not withstanding) and he authorized a program of domestic spying without warrants. If you don't recall this, you are woefully uninformed.

Since you think the "liberal media" may be lying to you, how about a court decision regarding the program? The first TWO SENTENCES reveal that 1. the program exists and 2. the administration does not dispute that is exists. http://fl1.findlaw.com/news.findlaw.com/nytimes/do cs/nsa/aclunsa81706opn.pdf [findlaw.com] [pdf link]

People that ignore facts on the basis that they were reported by the "liberal media" confuse me. About 2 seconds of research are all that is required to confirm much of this stuff. If you ignore facts because they came from the "liberal media" you are part of the problem; people in power can sit back and do what they like realizing that you are going to take what they say at face value and not take advantage of the resources at your disposal (the media) to see that they are lying.

Now, since you quoted Bush directly saying that wiretaps require warrants (in 2004), and I have linked to you a court document which reveals that Bush authorized warrantless wiretaps in 2002, what does this mean, logically? He lied, plain and simple. You don't even need the media, the government's own documents the lie.

This ruling expands the program!

[thule]

Check out this link:

http://strata-sphere.com/blog/index.php/archives/3 250 [strata-sphere.com]

AJStrata's point is that now the FISA will grant a warrant purely based on a NSA wiretap intel and nothing else. Under the TSP the FBI would need to do a follow up based on a lead from the NSA and provide additional reason/information to the FISA judge (see .http://www.washingtonpost.com/wp-dyn/content/arti cle/2006/02/08/AR2006020802511.html [washingtonpost.com]).

Remember the NSA has no standing in civilian courts and does not need a warrant to do what they do with foreign communications.

Re:About %@!#% time!

[thule]

But they did get a FISA warrant. The FBI would have to get the FISA warrant if the NSA generated a lead on the domestic side of the tapped communication. The domestic side wasn't the TARGET of the tap. Thus the NSA never needs a warrant. This has always been the case.

You call can be tapped without a warrant if you call some criminal suspect. That is because the TARGET of the tap is not you, the suspect is. This is how the TSP worked. The targets if the NSA taps were outside the US and considered part of the battlefield. If they needed to follow up domestically the FBI would get the information from the NSA and start their own investigation.

This ruling expands the program and does not require the FBI to further the investigation. The FISA will grant the warrant based purely on NSA intel.

Re:SECRET Court

[dbIII]

Don't forget the secret torturing to secret death. The reputation of the USA is going down the toilet due to no way to refute this other than "it was the guys we handed the prisoner over to and not us - and we don't know who the guys standing by with American accents were."