A Search for the Truth on Secret Courts for Surveillance — and Drones

The Atlantic
A Search for the Truth on Secret Courts for Surveillance — and Drones
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A Search for the Truth on Secret Courts for Surveillance — and Drones

At some point, the federal government violated the U.S. Constitution while conducting electronic surveillance. Discovering the details of that violation, as the Electronic Frontier Foundation is trying to do, involves unlocking two of the most impenetrable obstructions known to man: secrecy and bureaucracy. Meet the secret court that authorizes surveillance — the sort of tool Obama offers as one way in which his drone program might be made more transparent.

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Quick background is in order. The Foreign Intelligence Surveillance Court, or FISC, was created in 1978 to "review applications for warrants related to national security investigations," in the government's words. Its creation stemmed from the Church Committee, a Senate group organized to address instances of domestic spying by the military and presidentially authorized assassination attempts. By empaneling federal judges to review requests for surveillance under the Foreign Intelligence Surveillance Act, the goal was that FISC serve (somewhat ironically) as a check on executive branch power, while keeping the information classified. FISC, after all, is a secret court; the government appears before the judges and asks for authorization to surveil suspects, who aren't represented. As the War on Terror expanded, so did FISA, and so did FISC's reviews.

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Last July, Senator Ron Wyden of Oregon released a letter he'd received in response to a question about one of the FISA expansions. Written by Kathleen Turner, Director of Legislative Affairs for the Office of the Director of National Intelligence, the letter stated flatly: on at least one occasion, FISC ruled that some of the government's information collection violated the Fourth Amendment. The violations, Turner indicated, related to Section 702 of FISA, a controversial provision added in 2008 which allows the government to eavesdrop on electronic communication if it involves non-Americans, outside the United States.

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Which brings us to the EFF, a non-profit advocacy group focused largely on protecting online privacy. Once it became public that there existed a court opinion outlining how the government violated the Constitution, the group sought to have it made public (this sort of thing being in their purview). In a phone interview with The Atlantic Wire today, Mark Rumold, a staff attorney with the organization, described the process of requesting a secret document from a secret court.

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First, EFF requested the FISC opinion from the Department of Justice under the Freedom of Information Act (FOIA). The DOJ responded saying that the document was classified and refused to release it.

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Second, the EFF sued Justice. Rumold: "A principle in FOIA says that if there's any information that can be segregated and released, it has to be." Since the opinion is long, more than 80 pages, EFF assumed there must be significant legal discussion that could be released. "To us, it seemed very much like they were trying to hide the fact that what they were doing was unconstitutional," Rumold said. Justice responded to the lawsuit with a new argument: FISC's rules prohibited DOJ from releasing the document.

Which differs from what FISC told the ACLU five years ago, when the ACLU tried to get information from the court. FISC said that the proper avenue for accessing information was FOIA. As the EFF notes, this is a Catch-22: The judicial branch (FISC) says to ask the executive branch (DOJ). The executive branch says to ask the judicial.

So, third, the EFF filed a motion with FISC. Or, rather, it began to try to do so. The thing about secret courts is that they don't have well-lit offices into which one can walk and drop off paperwork.

Filing the motion "was unusual, to say the least," Rumold says. "Very little about the FISC is known. They have published rules. The public knows the judges that are on the FISC." But that's about it. The EFF found a phone number that was supposed to be used to file with the court, and called it. For four days. "We kept calling and leaving messages and calling and leaving messages and no one returned our calls."

Fourth, the EFF tried another number, meant to be used if you need to serve the Department of Justice. "I think I talked to four diff people in the DOJ," Rumold said. "Finally they said they'd contact the FISC for me." Rumold didn't hear back.

Fifth, the EFF reached out the presiding FISC judge who sits on the bench in Washington, DC. Rumold called his chambers and asked his clerk to help file a motion with FISC. The clerk said no.

Sixth, the EFF finally got a call back from someone at FISC. That person explained that the light on the phone that indicated if there was a voicemail was broken, so none of the EFF's messages had been heard. But at last the EFF got an answer to the question of how to file the motion: Send it to the Department of Justice.

Seventh, the EFF did that. And the DOJ said they'd pass it along.

The result of the motion, mind you, will not be the release of FISC's opinion on the Fourth Amendment. Instead, it is meant to have FISC answer the question of whether or not its rules prohibit FOIA disclosures. (You can read the brief here, if you speak Law.) If that response indicates that its rules don't prevent FOIA release, the EFF will return to court and force the DOJ to release FISC's opinion. Or at least some heavily redacted subset of the opinion. At some point after that, then, the American public may learn how and when the government violated the Fourth Amendment protection against unwarranted searches. (It's not certain that the government did spy on citizens, Rumold notes, but he thinks it's "quite likely.")

In his major foreign-policy speech today, the president pointed to a FISC-like court as a possible way of ensuring more transparency in the use of drones against terror targets.

[T]he establishment of a special court to evaluate and authorize lethal action has the benefit of bringing a third branch of government into the process, but raises serious constitutional issues about presidential and judicial authority.

If one model of making the drone program more transparent is FISC-like review, there's certainly reason for skepticism.

But Rumold, speaking with us prior to Obama's speech, pointed out that all of the attention paid to drones by the media had actually prompted a much different response from the government. "The transparency issues with drone strikes and with this type of electronic surveillance — in terms of the legal rationale for hiding this information — are identical," he said. "In the drone strike example, there's been a dramatic increase in transparency."

"If I had that in terms of electronic surveillance, I'd be happy."

Photo: Obama speaks in Mexico City, May 5. (AP)

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