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Courts and counterterrorism

Spencer Kimball
July 10, 2013

In the US, a special court decides in secret on government requests to monitor alleged terrorists. But some lawyers are concerned that post-9/11 reforms have undermined the judges' ability to keep state power in check.

The U.S. Court of Appeals for the D.C. Circuit, the E. Barrett Prettyman building - United States
Image: picture-alliance/landov

Although the Foreign Intelligence Surveillance Court was originally designed to buttress US citizens' constitutional rights, the secret judicial body has repeatedly sanctioned a broad expansion of domestic snooping by the federal government in the past five years.

Traditionally, the court ruled on government applications that targeted specific individuals suspected of being foreign agents. But last month, former National Security Agency (NSA) contractor Edward Snowden revealed that domestic spying by the intelligence community has become increasingly indiscriminate.

Snowden leaked to the Guardian newspaper a secret court order, which had forced the telecom giant Verizon to open the phone records of its customers to the NSA. He later revealed the PRISM surveillance program, which collects and stores Internet communications in NSA databases in the hunt for terrorism suspects.

"The FISA court today spends a lot of time signing off on these general government surveillance programs, and for better or worse they're not in a position to look at individual cases to decide whether there is individualized suspicion," Stephen I. Vladeck, an expert on national security law with American University in Washington, told DW.

FT. MEADE, MD - UNDATED: (FILE PHOTO) This undated photo provided by the National Security Agency (NSA) shows its headquarters in Fort Meade, Maryland. The NSA has been secretly collecting the phone call records of millions of Americans, using data provided by telecom firms AT&T, Verizon and BellSouth, the newspaper USA Today reported on May 11, 2006. (Photo by NSA via Getty Images)
The NSA's surveillance programs increasingly pick up domestic communicationsImage: Getty Images

Bulwark against abuse

In the 1970s, the Senate convened a committee to investigate illegal spying by US intelligence agencies on American citizens. Called the Church Committee, the investigation led to the passage of the Foreign Intelligence Surveillance Act (FISA) in 1978.

Under that act, a court composed of seven judges would review executive branch requests to spy on suspected foreign agents operating in the United States. Acting in secret, the FISA court would protect sensitive national security information while at the same time acting as a check on government abuse.

"The purpose of the court was to provide a judicial branch check on authorized surveillance that had previously been done by the executive branch on its own authority," William C. Banks, director of the Institute for National Security and Counterterrorism at Syracuse College of Law , told DW.

Post-9/11 amendments

Since the September 11, 2001 terrorist attacks, history's pendulum has swung toward more aggressive intelligence gathering in the United States. Section 215 of the USA Patriot Act, passed by Congress shortly after the attacks, expands the government's authority to seize business records. The recent FISA court order forcing Verizon to hand over the phone records of its customers was justified under this provision.

For a period, the Bush administration sought to abandon the FISA system altogether, secretly conducting wiretapping without court order for some five years. The New York Times exposed the program in 2005. Ultimately, public pressure forced the White House to discontinue warrantless wiretapping two years later.

In lieu of its warrantless program, the Bush administration proposed a stopgap measure called the Protect America Act (PAA), which Congress passed in 2007. In addition to traditional FISA court orders targeting individuals, the legislation also gave the Attorney General and Director of National Intelligence (DNI) the authority to conduct broader surveillance activities for up to a year, focusing primarily on communications between the US and foreign countries.

U.S. President George W. Bush (C) signs a bill that restructures the Foreign Intelligence Surveillance Act (FISA) at the White House in Washington, DC, USA, on 10 July 2008. The new bill, which Bush fought with Congressional democrats over for months, gives the executive branch broader latitude in eavesdropping on people abroad and at home who it believes are tied to terrorism. Numerous members of the Bush administration and the Congress joined The President on stage. EPA/MATTHEW CAVANAUGH +++(c) dpa - Report+++
President Bush signed the FISA Amendments act in 2008Image: picture-alliance/dpa

After the PAA expired, the FISA Amendments Act was passed in 2008, which contained similarly broad provisions. And in 2012, President Obama reauthorized the FISA Amendments Act for another five years, essentially claiming ownership of the program.

"The idea was this would give them the ability to collect broader amounts of information and then they would follow minimization procedures (All data is first collected and then minimized, i.e irrelevant material is tossed out - the ed.)," Laura Donohue, director of the Georgetown Center on National Security and the Law, told DW. "They would basically exclude information that did not really specifically relate to the investigation underway."

'End run around fourth amendment'

But these broad surveillance activities have raised constitutional concerns. Last February, Amnesty International USA filed a complaint in federal court. Amnesty argued that the government's expanded surveillance powers violate the fourth amendment of the US constitution, which protects against unreasonable search and seizure.

In response, Director of National Intelligence James Clapper argued that Amnesty did not have the standing to sue, because the human rights group could not demonstrate that it had been a target of surveillance. The Supreme Court agreed with Clapper and threw out the case.

"The problem is that the minimization procedures include using any information about criminal activity they may uncover," Donohue said of the surveillance programs. "So now what it's become is an end run around the fourth amendment, where there is no warrant required to collect the information, to find criminal behavior and then to prosecute."

Director of National Intelligence James Clapper testifies before a Senate (Select) Intelligence hearing on "World Wide Threats" on Capitol Hill in Washington January 31, 2012. REUTERS/Kevin Lamarque (UNITED STATES - Tags: POLITICS MILITARY HEADSHOT)
Clapper argued that Amnesty had no standing to challenge the governmentImage: Reuters

Accountability and independence

There are also questions about the court's accountability and independence. The judicial body was expanded from seven to 11 judges by the Patriot Act. They are chosen by a single person, the chief justice of the Supreme Court, and serve for a term of seven years. The FISA court judges are selected from federal district courts. Twelve of the 14 judges who have served this year were originally appointed to the federal bench by Republican administrations, according to Reuters news agency.

"One can reasonably ask whether that's a process that lends itself to an independent court," Vladeck said. "And whether the chief justices who have put judges on the FISA court have made the right kind of determinations."

Legal experts have also raised concerns about whether the FISA court proceedings are adversarial enough. The government's applications before the court are rarely turned down. According to the Electronic Privacy Information Center (EPIC), the executive branch submitted 1,856 applications to the court in 2012. Not a single application was rejected.

Vladeck recommends attaching a special advocate to the court, whose sole job would be to challenge the government's applications. But he doubts that Congress has the stomach to reform the court.

"This is the very same Congress that reauthorized the FISA Amendments Act last year without batting an eye," he said. "So it's hard for me not to be skeptical."