The leak of a document showing the Obama administration asked for millions of phone records has turned a spotlight anew on a secretive U.S. federal court set up 35 years ago to curb intelligence abuses. By Lawrence Hurley.
Made up of 11 judges who serve staggered seven-year terms, it is called the U.S. Foreign Intelligence Surveillance Court. The judges’ identities are known, along with the name of the person who appoints them: the chief justice, now John Roberts.
In a departure from other courts, all of its rulings are secret and there is no adversarial system. Instead, government lawyers make a request and the judge either approves or rejects it. No other parties are present. The court approves nearly all requests, according to Justice Department data.
In an annual report to Congress that is publicly available, the department said that in 2012 the government made 212 applications for access to business records, which is the same kind of request as that made of Verizon Communications Inc in the present case.
The court denied none of the applications but amended 200 of them, the report said.
The court also oversees applications for electronic surveillance and physical searches. There were 1,856 such applications in 2012, when all were approved except for one, which the government withdrew before the court could rule.
Congress enacted the Foreign Intelligence Surveillance Act setting up the court in 1978 amid concerns about the lack of legal oversight over the intelligence community’s activities.
Activity by the U.S. intelligence community uncovered by congressional investigations included illegal mail-opening programs and the targeting of domestic protesters and political opponents by the Nixon administration.
Now, critics say, the court set up to curb misconduct is rubber-stamping drastically expanded intelligence gathering efforts started after the Sept. 11, 2001, attacks that prompt similar concerns about infringements on civil liberties.
Government authority to obtain records was expanded further by the 2001 USA Patriot Act, which Congress passed with overwhelming bipartisan support in the immediate aftermath of the attacks.
‘ANY TANGIBLE THINGS’
The government cited Section 215 of the Patriot Act in making its request in the Verizon case. This section allows the government to ask the court for “any tangible things” as part of any authorized investigation related to terrorism or intelligence activities.
As the Justice Department wrote in an October 2011 letter to members of Congress, the government must show, among other things, that the information sought is “relevant to an authorized national security investigation.”
At least one president has tried to sidestep the court.
President George W. Bush’s administration chose not to ask the court to approve wiretapping of calls between suspected terrorists until 2007, news accounts of the program’s existence prompted controversy. This incident led to increased concerns among civil liberties advocates that the government effectively had a green light to invade the privacy of Americans.
Among the few who know how the secret court acts are members of Congress. The Obama administration has been keen to highlight how access to orders and opinions issued by the secret court is provided to members of both parties on the intelligence committees in both houses of Congress and on the Senate Judiciary Committee.
The court is comprised of sitting federal judges, appointed for life, who take on the additional responsibility for the seven years of the surveillance court term. The judges are all over the country, although several are in the Washington area.
It is not clear exactly how the chief justice chooses the judges who serve on the court. Some of the judges have a national security background while others do not, according to a source familiar with the court. Further information on how Chief Justice Roberts appoints judges was not immediately available from a U.S. Supreme Court spokeswoman.
The court has a physical presence in the U.S. District Court in Washington. The current presiding judge is Reggie Walton, a U.S. district judge in Washington who was appointed by Bush.
The vast majority of judges now on the court are Republican appointees.
The judge who approved the Verizon order, Roger Vinson, is a senior federal district judge in Florida. His term ended at the beginning of May. Vinson, a U.S. Navy veteran, was appointed to the bench by Republican President Ronald Reagan in 1983.
The intelligence court’s workload increased after the Sept. 11 attacks. Between 1978 and 2001, it received 46 emergency requests. In the year after Sept. 11, there were 113, according to a legal textbook on national security by legal experts J. Douglas Wilson and David Kris, who was head of the Justice Department’s national security division from 2009 to 2011.
A former member, U.S. District Judge Royce Lamberth of the District of Columbia, described his experience serving in a 2002 speech in which he denied that the court was a rubber stamp.
“I ask questions. I get into the nitty gritty,” he said. “I know exactly what is going to be done and why. And my questions are answered, in every case, before I approve an application.” DM
Photo by Reuters
"The soul is known by its acts" ~ Thomas Aquinas