ACLU Sues for FISC Secret Opinions

Stan Ward

Stan Ward

November 1, 2016

For almost three years now, I’ve written about the dangers of the increased appetite that governments – specifically the US government – has for accumulating power, and wielding it to further its ends. This includes over regulation, secrecy, and opaqueness instead of transparency.

The process should be familiar to anyone acquainted with the military term ’’mission-creep”, where the mandates of a direct order or approval for one mission is expanded and extended to the point where it becomes de rigueur for continuing operations – sort  of standard operational practice.

This is what has happened with the Foreign Intelligence Surveillance Court (FISC), born in 1978 out of the Foreign Intelligence Surveillance Act (FISA). If an unbiased outsider were to look at this situation, he or she might liken it to a medieval secret society. But even the Star-Chamber trials and kangaroo courts of that and subsequent eras had, at least, the pretense of a trial. Not the FISC as it now is constituted and operates.

Originally created to approve warrants against foreign agents and spies, its role has changed and greatly expanded after the 9/11 attacks, to the point where it has begun secretly interpreting surveillance laws for law enforcement and intelligence agencies.

The key word, which has had privacy advocates up in arms for more than a decade, is the word “secret”. Almost without exception, it operates in the shadows (save for some government officials), making what amounts to “secret laws” that are not approved by Congress, and cannot be appealed. One would think that this violates the Constitution, yet it operates with a wink and a nod from Congress, and without so much as a murmur from the supposedly free press.

Now, however, some light is being shed on the FISC in an action initiated by the ACLU, calling on the Court to make public some 23 opinions which have remained secret to this day. The opinions have empowered agencies to compel companies to weaken encryption, and most onerously, codified the NSA’s mass surveillance and the bulk collection of financial records by the CIA.

Last week, the ACLU and the Yale Law School Media Freedom Clinic filed a motion (.pdf) with the Court, requesting that those opinions be released. Some might say, “Ho-Hum, the government is operating in the shadows. What’s new?” By the way, after the last eight years of Obama, this diffidence is not uncommon or unwarranted. But their decisions affect our everyday lives.

The latest example would be Yahoo, which recently secretly scanned every customer’s incoming email based on a secret order from the court. Freedom of Information Act requests have determined that the government has kept classified as many as 30 significant court opinions and orders dating from 2003 to 2013.

A more high-profile example of the court slowly extending its mandate is revealed in Edward Snowden’s revelations, where the FISC had sanctioned the bulk collection of American’s phone records, despite the fact that the law only allowed for the collection of specific records “relevant to a (pertinent) authorized investigation.”

What is most frightening about the Court operating for so long without oversight is that with each overreach it seems to become emboldened. In fact, it has made rulings with impunity, in an atmosphere of permissiveness toward this type of behavior. The candidate Barack Obama campaigned in 2008 promising to usher in “the most transparent administration in history.” It has instead has been one of the most secretive, and in certain ways, one of the most elusive.

Paradoxically, the out-of-control surveillance apparatus is an outgrowth of the government’s reluctance to insinuate America’s military might (rightly or wrongly) into foreign conflicts. Instead, it has ramped-up covert intelligence operations to offset this aversion to overt military action. The result is that the “F” in Foreign Intelligence has morphed into an “F” for feebleness, when it comes to protecting domestic individual’s privacy rights.

In case you’re hopeful that a change of leadership in the Oval Office might change the direction of sub rosa surveillance practices against private citizens at home and abroad, I don’t want to dampen your enthusiasm. But consider that the front runner for that job in the presidential campaign, which is thankfully winding down, is no stranger to secrecy.

On the contrary, Hilary Clinton’s paranoia and lack of transparency while Secretary of State during “the most transparent administration in history,” may ultimately cost her the election and that position. We can only hope that the efforts of the ACLU against the secret FISA court will transcend the policies of whoever occupies the White House for generations to come.

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