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Ear to the Ground

Judge Calls Out Feds for Repeated ‘Misrepresentation’ in Secret FISA Court

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Posted on Aug 22, 2013
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Just in case the revelations about NSA spying weren’t enough to boil blood, now come reports that even the court nominally overseeing the secret surveillance programs thought the agency was out of control—and for a time was unconstitutionally gathering some 56,000 “wholly domestic” emails a year.

And lying about it.

The details are contained in a partially redacted 2011 ruling by John D. Bates, then chief judge of the Foreign Intelligence Surveillance Court, that was declassified Wednesday as a result of a Freedom of Information Act lawsuit brought by the Electronic Frontier Foundation. The ruling can be downloaded here, and it offers further details on revelations from last week that the NSA routinely broke its own secret rules on electronic eavesdropping.

“For the first time, the government has now advised the court that the volume and nature of the information it has been collecting is fundamentally different from what the court had been led to believe,” Bates wrote in the 85-page ruling.

Bates determined that the NSA was likely violating the Fourth Amendment in conducting its information gathering, and may have violated specific federal laws governing surveillance (those policies have reportedly since been changed). And Bates used a footnote to blast the government’s behavior in court.

“The Court is troubled that the government’s revelations regarding the NSA’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” Bates wrote. He said that two years prior the court had concluded that an earlier approval it had issued for gathering telephone records “had been premised on a flawed depiction of how the NSA uses” the data and had been “buttressed by repeated inaccurate statements made in the government’s submissions and despite a government-devised and Court-mandated oversight regime.”

Bates also wrote that “the government’s submissions make clear” that the NSA had been gathering electronic records before it had approval, and that the agency may have violated federal laws.

The FISC ostensibly is the check and balance on the government’s secret surveillance programs, but the current chief judge of the court, Reggie B. Walton, told The Washington Post last week that the FISC “is forced to rely upon the accuracy of the information that is provided to the Court.” Yet it’s clear from Bates’ ruling that the court receives “substantial misrepresentation(s)” from the government—not an ideal situation for legal oversight, or for shoring up Americans’ faith in the system.

This is the system, you’ll recall, that President Obama defended earlier this month in a White House news conference.

“It’s right to ask questions about surveillance, particularly as technology is reshaping every aspect of our lives,” Obama said. “It’s not enough for me, as president, to have confidence in these programs. The American people need to have confidence in them as well.”

A little late for that. As Mark Rumold of the Electronic Frontier Foundation told The New York Times on Wednesday, the ruling shows the oversight system doesn’t work.

“This opinion illustrates that the way the court is structured now it cannot serve as an effective check on the N.S.A. because it’s wholly dependent on the representations that the NSA makes to it,” Rumold said. “It has no ability to investigate. And it’s clear that the N.S.A. representations have not been entirely candid to the court.”

—Posted by Scott Martelle.

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