FISA Court Renews NSA Spying Program

Obama continues the trampling of the US constitution!!


Global Research, July 23, 2013

On Friday, the Obama administration announced that it had
sought—and the secret FISA court had granted—a renewed authorization for
the NSA spying program that compels US telecommunications companies to
turn over their telephone records in bulk.
“Consistent with his prior declassification decision and in light of
the significant and continuing public interest in the telephony metadata
collection program, the DNI [Director of National Intelligence] has
decided to declassify and disclose publicly that the Government filed an
application with the Foreign Intelligence Surveillance Court seeking
renewal of the authority to collect telephony metadata in bulk, and that
the Court renewed that authority,” the Obama administration press
release stated.
In other words, the Obama administration is disclosing the
reauthorization this time, but it reserves for itself the power to
conceal the program’s continued existence from the public in the future
at its own discretion. The particular NSA program that was the subject
of Friday’s press release apparently requires “renewal” every 90 days in
the Foreign Intelligence Surveillance Court (FISC), also known as the
FISA court after the 1978 Foreign Intelligence Surveillance Act that
created it.
Contrary to the press release’s characterization of recent events,
the Obama administration did not voluntarily “declassify” the NSA
program’s existence. Instead, the administration made at best a number
of preemptive disclosures designed to soften the impact of ongoing
revelations by NSA whistle-blower Edward Snowden. Meanwhile,
notwithstanding the “public interest,” the United States is presently
waging a desperate international campaign to capture or silence the
30-year-old former employee of Booz Allen Hamilton.
Snowden’s disclosures, among many other things, have highlighted the
extent to which in recent years the FISA court has quietly assumed a
vastly more significant role in the state apparatus. Within this shadow
judiciary, a body of secret law is being promulgated, including secret
interpretations of the Constitution, pursuant to which secret rulings
are issued purportedly granting legal authority for an array of secret
programs and activities. (See “”)
Orders and decisions issued by this secret court purport to authorize
the Obama administration to gather up and store the private data of
hundreds of millions of individuals around the globe, including
telephone calls, SMS messages, internet browsing activity, emails,
Facebook activity, photos, videos, and more.
The FISA court is a “court” in name only. A person targeted for
surveillance has no right to appear in the courtroom and contest the
government’s allegations. The court’s proceedings are kept entirely
secret and its records are considered “classified.” There is no right to
appeal or to challenge the court’s rulings—except for the government.
The FISA court’s secret proceedings are always ex parte, meaning that only one side—the government side—is represented. The targeted person’s position is argued by an empty chair.

The FISA court issues warrants without any notice or public record of
its rulings. Targeted individuals have no way of knowing that they have
been targeted. It is authorized to issue “gag orders” against
individuals who accidentally become aware that that they have been
targeted. These orders prohibit a targeted person from telling anyone
else about the activities of the intelligence agencies or of the FISA
According to recent statistics, the FISA court has issued 33,942
warrants since the court began operating in 1979. It has denied the
government’s request only 11 times. In other words, the government’s
requests in this court are granted approximately 99.997 percent of the
time and denied 0.003 percent of the time.
Although constituted as a “court,” the FISA court was actually
physically located for many years in the federal Department of Justice
building, which houses part of the executive branch.
The FISA court was established following the Senate Church Commission
hearings in the late 1970s. These hearings uncovered a vast array of
criminal activities on the part of the US intelligence agencies,
including warrantless spying and murder. The Foreign Intelligence
Surveillance Act of 1978 created the FISA court as an ostensible
judicial check on the future activities of the intelligence agencies.
The court consists of 11 judges appointed by the Chief Justice of the
Supreme Court. Over recent decades, it has been stacked with former
prosecutors and other figures closely aligned with the federal law
enforcement and intelligence apparatus.
As early as June 2000, the Bush administration began conducting
surveillance without even bothering to request authorization from the
FISA court. This brazenly illegal spying was the subject of a New York Timesexposure
in December 2005. In 2008, by a bipartisan majority, Congress passed
the “FISA Amendments Act of 2008.” These amendments, which emerged from
secret closed-door meetings, retroactively approved the Bush
administration’s illegal wiretaps and vastly expanded the government’s
surveillance powers.
Other expansions of the surveillance powers of the government and of
the FISA court were included in the PATRIOT Act of 2001 and the Protect
America Act of 2007.
As constituted in 1978, and in its vastly expanded form today, the
secret FISA court is entirely unconstitutional. The Fourth Amendment to
the Bill of Rights asserts, “The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and 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.”
The requirement that the government obtain a warrant before
conducting a search and seizure—and the requirement that the warrant be
specific—reflected overwhelming hostility at the time of the American
Revolution to the colonial authorities’ practice of issuing “general
warrants.” General warrants were blank checks for colonial officers to
invade homes and carry out arbitrary searches and arrests.
The 1776 Virginia Declaration of Rights, expressly prohibits general
warrants: “That general warrants, whereby any officer or messenger may
be commanded to search suspected places without evidence of a fact
committed, or to seize any person or persons not named, or whose offense
is not particularly described and supported by evidence, are grievous
and oppressive and ought not to be granted.”
In the recent period the FISA court has shifted from issuing specific
surveillance warrants to issuing general authorizations for entire
surveillance programs. In other words, instead of issuing a warrant for
the government to spy on a particular person for a particular period of
time in a particular way, the FISA court is granting general
authorizations for the government, for example, to access wholesale the
records of telecommunications companies.
Retired U.S. District Judge James Robertson testified before a
federal oversight board that, under the 2008 FISA amendments, the court
“has turned into something like an administrative agency,” referring to
the authorizations the court hands down for entire spying programs.
“What FISA does is not adjudication, but approval,” Robertson said.
The FISA court now functions as a pseudo-legal mechanism pursuant to
which the government can circumvent the entire system of constitutional
and democratic rights and legal precedents established over a period of
the last two and a half centuries. It exists as a separate, shadow
judicial branch—one commentator described it as a “parallel Supreme
Court”—with a key role in the framework of an emerging American police
In light of recent revelations regarding the FISA court, it is worth recalling that the New York Times and
sections of the political establishment have repeatedly called for the
establishment of a FISA-type court that would have the power to
authorize assassinations.
In one such article, dated May 3, 2011, the New York Times argued
“that a decision to kill an American citizen should have judicial
review, perhaps by a special court like the Foreign Intelligence
Surveillance Court, which authorizes eavesdropping on Americans’
In other words, the Times is in favor of the establishment
of secret courts with the power to issue death warrants. In these secret
death courts, as in the FISA court, all of the basic legal protections
in the Bill of Rights and later Civil War amendments would be ignored.
There would be no due process, no equal protection of the law, no right
to an attorney, no opportunity to present a defense, no right to
confront one’s accusers, no jury, no presumption of innocence, no proof
beyond a reasonable doubt, and no right even to know about the charges.
The death warrants could be directed against individual citizens or
perhaps against entire organizations or political parties.
The secret FISA court system constitutes a menace of major
proportions to the American and world public. Its trajectory further
demonstrates the impossibility of imposing any reforms on the American
military-intelligence complex.
Terrified of the possible emergence of mass opposition to its
policies of plunder, war, and austerity, the capitalist class is
deliberately building a police state. This regime cannot be reformed. It
can be abolished and democratic rights secured only through the
independent political intervention of the working class.