Why The FISA Court Is Not What It Used To Be

By Nina Totenberg

Published June 18, 2013 at 3:07 AM EDT

A copy of the U.S. Foreign Intelligence Surveillance Court order requiring Verizon to give the National Security Agency information about calls in its systems, both within the U.S. and between the U.S. and other countries.

The furor over recently exposed government surveillance programs has posed an abundance of political challenges for both President Obama and Congress. Relatively unmentioned in all of this, however, is the role of the courts — specifically, the Foreign Intelligence Surveillance Court, known as the FISA court, and how its role has changed since the terrorist attacks of Sept. 11, 2001.

Obama has said that there are tradeoffs between privacy and security in an age of international terrorism. But he emphasized that the two surveillance programs exposed this month were repeatedly authorized and reviewed by Congress, with federal judges "overseeing the entire program throughout."

Despite being overseen by judges, they are not examined in the way that a normal application for a search warrant is.

For decades, the government conducted warrantless wiretaps of people in the United States deemed to be a national security threat. But in 1978, after the U.S. Supreme Court ruled such warrantless searches unconstitutional, Congress passed legislation that created a special intelligence court to review government requests for warrants. The law was tweaked over the years, but the core of the court's powers remained unchanged for decades. If the government wanted to listen in on conversations or other communications in the U.S., it had to get a warrant from the foreign intelligence court based on individualized suspicion and probable cause to believe that national security was being compromised.

After 9/11, the Bush administration circumvented that law; President Bush authorized new surveillance programs without submitting them to the foreign intelligence court. After news reports blew the lid off the administration's dodge, Bush submitted to Congress proposed changes in the law, which were adopted in 2008. Those changes allowed the government to conduct the so-called PRISM program and monitor any and all conversations that take place between the U.S. and someone in a foreign country. No longer is there a requirement of individual targeting, observes Jameel Jaffer of the ACLU.

"It's a very different role that the FISA court is playing now than it played five years ago," Jaffer says. "The FISA court is just reviewing at a very programmatic level: Is the government targeting only international communications, or is it impermissibly targeting domestic ones? That's the only question that the FISA court asks."

In short, the FISA court is now far more removed from the specifics of targeting people for surveillance.

Former National Security Agency general counsel Stewart Baker concedes the point. "But let's remember that the reason they lost that authority was some aggressive actions on the court to enforce what was called the wall between intelligence and law enforcement," Baker says. "That may have cost us our best chance at catching the 9/11 hijackers ... before the hijackings."

As a result, the FISA court became "less a court than an administrative entity or ministerial clerk," says William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University. "They weren't reviewing law anymore; they were simply sort of stamping papers as approved or filed."

After 2008, Banks adds, the FISA court didn't "have a substantive review of these directives that come down the pike."

A second program overseen by the FISA court was authorized in 2001 by the Patriot Act. Under the law, the government has collected all communications metadata for Americans and non-Americans alike. Unlike the PRISM program, metadata does not include monitoring of content per se. Instead, the program orders U.S. telecom companies to provide the government with records of all phone calls made and email identifiers sent through their servers. The information also includes how long individual calls last, the locations that the calls are made from and specific websites surfed.

Rep. James Sensenbrenner, R-Wis., author of the Patriot Act, now maintains that the law was not intended to allow such broad information gathering.

"I would see nothing wrong with targeting the phone records of somebody who is suspected of terrorism, but everybody who either sent or received a call from a Verizon phone and maybe the other cellphone providers, that was never the intent," Sensenbrenner said on Fox News earlier this month.

Such protestations may be little more than buyer's remorse. Bush and Obama administration intelligence officials say Congress has been repeatedly briefed on this program, a contention backed up by many members of Congress from both parties. Moreover, some point out that telecom companies themselves have sold a lot of this information to commercial entities that want to target particular people and groups for sales pitches.

Intelligence officials point to two legal authorities for the government collecting such metadata. In 1979, the U.S. Supreme Court upheld the warrantless use of pen registers, attachments on the phone lines of individuals to record the numbers of outgoing and incoming calls. A year earlier, the court upheld the right of postal inspectors to review the addresses on the outside of envelopes without a warrant. Now, neither of these things is comparable to the massive collection of metadata from telecom companies today, but intelligence officials see it as essentially collecting information on the outside of envelopes, not the information inside.

To look inside the envelope, officials point out, they have to go back to the FISA court. If, for example, the NSA were to see that there are many different phones calling U.S. numbers from a single location in Yemen, suggesting that there is an attempt at deception, the government would have to go back to the FISA court and present that information as justification for pulling up the content of those calls.

At bottom, though, few if any experts in the Bush or Obama administrations believe that the FISA court has the enforcement teeth it once had. Many of those teeth were pulled out by the 2001 Patriot Act and the 2008 amendments to the foreign intelligence surveillance law. For good or ill, as one expert put it, the court has been defanged, at least until and unless Congress decides to restore some of its powers.