In the blur of unhinged rage circulating around Edward Snowden and the NSA story, you might've missed the bombshell New York Times article by Eric Lichtblau about the Foreign Intelligence Surveillance Court (FISC), titled "Intelligence court rules wiretapping program legal."
The article documents how the appeals court that oversees FISC ruled that NSA can gather cellphone and email metadata without a court order.
The lede: "A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans' private communications may be involved."
The ruling will be released by FISC on Thursday. That is, Thursday January 8, 2009.
The article was originally published on January 5, more than four-and-a-half years ago. (It's worth noting that in April, 2009 the Obama Justice Department pulled back the reins on NSA overreach and enacted new privacy safeguards, according to the Wall Street Journal. Another fact lost down the memory hole.) So much of this NSA story has been reported before to varying, but significantly lesser degrees of public outrage, and yet every article posted since early June has been treated as if it's a brand new "bombshell." Bug-eyed demands for the imprisonment of the president, the dissolution of NSA and the canonization of Edward Snowden have ensued.
It happened again this weekend.
Another New York Times article was posted by Eric Lichtblau, titled "In Secret, Court Vastly Broadens Powers of N.S.A." (No, I'm not doing another bait-and-switch. It was published on Saturday.) The article was greeted with the now-mandatory conga-line of berzerker reactions from Greenwald/Snowden fanboys who predictably focused almost exclusively on the "In Secret" part. Others offered nearly-exclusive credit for the story to Snowden himself. Apparently this is yet another of his amazing superpowers: in addition to doing more for the world in the last two months than you'll do in your entire life, you lazy bastard you, Snowden is apparently entitled to full credit for bombshells to which he didn't directly contribute.
Turns out, Reuters published a similar story more than two weeks ago about who sits on FISC and how it operates . Reporters John Shiffman and Kristina Cooke revealed that out of the 14 judges who sat on the FISA court this year, 12 are conservative Republicans. Only one, Mary McLaughlin is a Democrat. (There are 11 judges on the panel but, due to turnover, there were a total of 14 this year.)
The article brought into crystal-clear focus what could be the real meat and potatoes of the surveillance issue: FISC is in desperate need of reform if NSA surveillance is to continue.
Sadly, the 2008 FISA Amendments Act did nothing to fix the way the court operates or how its judges are appointed.
The latter is arguably at the top of the list of reforms. The 1978 FISA law, signed by Jimmy Carter, names the chief justice of the Supreme Court as the sole authority privileged with the task of appointing judges to the court. Again, the role of the chief justice is not new news, neither are the names of the judges he appoints, but it's easily the source of why the court is so ridiculously partisan. (One of the FISC judges, Roger Vinson, ruled that Obamacare's individual mandate was unconstitutional.) Before Roberts, Chief Justice William Rehnquist also appointed mostly conservative FISC judges.
Clearly, the chief justice is incapable of appointing a nonpartisan, or even strictly bipartisan panel of judges. The first reform must therefore be that FISC judges are appointed by some other means, perhaps by a bipartisan panel of congressmembers and maybe a representative from the Department of Justice or the Attorney General himself. Whichever way it's done, there's no excuse for such a ridiculously lopsided court, especially a court that's tasked with such a delicate matter as foreign surveillance and civil liberties.
Next up, out of more than 20,000 requests for warrants by NSA since 2001, only 10 have been rejected by FISC. The Reuters piece notes that some of the warrants have been edited by the judges, but that's not even close to having the patina of judicial scrutiny -- that is unless NSA warrant requests are invariably airtight, which would be a quite a spiffy yet unlikely track record. Incidentally, I'm not suggesting the court indiscriminately reject a certain percentage of all requests, but perhaps it ought to be a little more finicky.
As for the secretive nature of the court, I'm not sure there's really any way around it. No matter how entitled to full disclosure of national security secrets some people think they are, there needs to be secrecy during criminal and potential terrorist investigations. Broadly speaking, while transparency in certain areas is crucial, it simply can't occur the way Greenwald and others want it.
So, no, Greenwald acolytes don't get to know every detail of every FISC warrant and every ruling because, shocker, secrecy is critical when it comes to not tipping off the bad guys that they're being surveilled. A Skype camera inside the Situation Room won't happen either. But, if anti-secrecy activists are tenacious enough, they can file Freedom of Information Act requests and might get what they want. In fact, back in May, pre-Snowden, the Electronic Frontier Foundation (EFF) filed an FOIA request and convinced the court to release a series of documents pertaining to the FISA Amendments Act's infamous Section 702. And the EFF didn't have to flee to Hong Kong and Russia to do it.
Warrants are the hinge upon which the legitimacy of NSA and FBI surveillance swings. Without a reasonable system of issuing foreign surveillance warrants in way that carves serious judicial oversight into the bedrock of these programs, the valuable effort to pursue overseas criminals becomes difficult to defend. So in addition to taking a hard look at the gigantic loophole that is the outsourcing of NSA surveillance to private corporations where hackers like Edward Snowden have enjoyed a ridiculous level of access to delicate national security documents, not to mention digital back doors into God-knows-what-else, reforming FISC should've been the primary goal out of all this chaos.
Speaking of chaos, it's worth repeating that the way Snowden has comported himself and the means by which he's orchestrated these leaks has served to eclipse FISC as a central issue. Sure, Snowden and his chief flack Greenwald have been effective at inciting outrage among their followers who only hear: "Secret surveillance! The new Stasi! Big scary Obama is right behind you watching your keystrokes as you type them! IEEEEE!" Greenwald-inspired outrage has helped to nearly decimate the existence of previous articles and books that detail some of the same information. Snowden's very high profile emergence and highly questionable excursions to oppressive nations like China and Russia, along with all of the divisive, polemical baggage Greenwald brings to the table has ultimately prevented a necessary focus on issues like reforming FISC.
Instead, the way Snowden and Greenwald have bungled the operation has left many of us with no choice but to wonder why they're behaving so oddly and engaging in suspiciously coy behavior in the face of something so important. Had Snowden kept his head down and either gone through proper channels or inconspicuously leaked his documents to a journalist whose instincts, chops and IT expertise were vastly more honed that Greenwald's, we might be having a very different debate about surveillance and FISC. I'd like to think it would've been a more reasonable, rational debate with the correct historic perspective. Sadly, it appears to be too late for that.
(Thanks to @billiegirltoo for hunting down the 2009 NYT article.)