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Ever since the Edward Snowden story broke, the government has been claiming that the dragnet domestic surveillance done by NSA was, in the words of president Obama and Congress, "approved by a court." This is a disingenuous attempt to give legitimacy to a series of programs that violate at least two federal laws and the Fourth Amendment. It leaves the false impression that an Article III federal court approved domestic surveillance programs, when it fact it was the secret Foreign Intelligence Surveillance Court (FISA). Worse yet, the government has shut down almost all federal lawsuits challenging secret surveillance by asserting the "state secrets" privilege.

Federal courts were created by the Constitution. The FISA Court was created by Congress. There are enormous differences between the two. Federal courts are open to the public, whereas the FISA court operates in secret, hears only one side of the argument (the government's), and approves 99.7% of the applications it considers.

The New York Times' Eric Lichtblau, one of the journalists who broke the Pulitzer Prize-winning warrantless wiretapping story back in 2005, has written another blockbuster (or it should be) article, revealing just how expansive FISA has enlarged its own jurisdiction, creating "a parallel Supreme Court" and entire body of surveillance law that vastly broadens NSA's surveillance powers--in secret.

Congress created the FISA Court in 1978, ironically, to reign in gross domestic spying abuses. I say "ironically" because after 9/11, the FISA Court instead created an entire body of law that gives the NSA the power to collect all digital data of Americans.

The FISA Court has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come.
These problem is that these opinions are creating an entire canon of secret law. We fought a revolution against this sort of thing.

The order we got to see, thanks to Snowden's disclosures, is alarming because

it reveals that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny.
Worse yet,
In one of the court’s most important decisions, the judges have...carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures.
This legal interpretation is incredibly dangerous because, in Yoo-esque logic, it stretches an extremely narrow exception to justify mass domestic surveillance.

I've tried to explain the FISA bait-and-switch to a number of intelligent, over-educated people.  But unless you're steeped in surveillance law, it's hard to understand.

I guess my take-aways would be:

* The FISA Court is completely different from a regular federal court in function.
* The Foreign Intelligence Surveillance Court is supposed to opine on foreign communications, not domestic-to-domestic communications.
*The government is doing a bait-and-switch when it says its mass illegal domestic surveillance has been "approved by a court."
*The FISA court has wholesale created an unlawful exception to the Fourth Amendment.

Originally posted to Jesselyn Radack on Mon Jul 08, 2013 at 06:51 AM PDT.

Also republished by The First and The Fourth.

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