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The History Behind America's Most Secretive Court

The secret Foreign Intelligence Surveillance Court resides in this courthouse in Washington, D.C.
Cliff Owen

This week The Guardian newspaper shared with its readers a document that few people ever get to see — an order from the Foreign Intelligence Surveillance Court telling Verizon to share countless phone records with the National Security Agency. The White House would not confirm the existence of this surveillance effort, but it insisted Congress is fully briefed about such activities. Members of Congress confirmed that they knew.

Republican Sen. Saxby Chambliss, ranking member of the Senate Intelligence Committee, said the program stored phone records to look for terrorist connections.

"If there's a number that matches a terrorist number that has been dialed by a U.S. number or dialed from a terrorist to a U.S. number, then that may be flagged," Chambliss says.

The court order does not let the NSA eavesdrop on the content of conversations, but it does allow the agency to collect data about the phone calls of millions of Americans without their knowledge, whether or not they are directly linked to anything illegal.

Democrat Dianne Feinstein, head of the Senate Select Committee on Intelligence, insisted that the program protected privacy by operating under strict oversight from Congress and from a special surveillance court.

"And that's why this is carefully done, that's why it is a federal court of 11 judges who sit 24/7, who reviews these requests and then either approves them or denies them," Feinstein says.

The names of the judges on the Foreign Intelligence Surveillance Court are public. But good luck trying to read the thousands of wiretap orders the court has approved since it was created in 1978. They are all secret.

The court was designed to address abuses uncovered in the 1970s by congressional investigations. Gregory Nojeim of the Center for Democracy and Technology says Congress passed the Foreign Intelligence Surveillance Act (FISA) to bring law to a lawless area.

"Prior to FISA, presidents claimed authority to engage in electronic surveillance for national security reasons without any court oversight," Nojeim says. That led to uncontrolled domestic spying by the National Security Agency, the CIA and the FBI.

The FISA court, it was hoped, would stop those abuses by only approving legitimate surveillance requests, without tipping off terrorists and spies. To do that, Nojeim says, everything about the court has to remain secret. "Its proceedings are not revealed to the public, and if they are revealed to Congress, they're revealed in a classified setting," he says.

That's one of the unusual things about the Verizon case: We get to see an actual FISA court order, signed by Judge Roger Vinson, a federal judge in the Northern District of Florida.

Ordinary wiretaps are sometimes challenged by defendants once they are charged, but victims of FISA wiretaps almost never even find out they were bugged. In 2008, a group of activists and journalists challenged a law that expanded this court's authority. They argued that their communications put them at risk of being caught up in government wiretaps. But earlier this year, the Supreme Court said these people could not show they had in fact been monitored, so it threw their suit out.

David Fidler, a law professor at Indiana University School of Law, says the existence of this court order could provide new grounds for a challenge. "Makes it much more likely that a Verizon customer can say, 'Hey, I was in fact the subject of surveillance. Here's the scope of the order,' " Fidler says.

The secrecy of the entire FISA system makes it just as difficult for members of Congress to raise questions. Two senators said Thursday they had concerns about the surveillance order, but they could not speak up because the whole process is secret.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

Larry Abramson is NPR's National Security Correspondent. He covers the Pentagon, as well as issues relating to the thousands of vets returning home from the wars in Afghanistan and Iraq.
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