Courts and Secret Law

The Wall Street Journal reports:

The National Security Agency's ability to gather phone data on millions of Americans hinges on a secret court ruling that redefined a single word: "relevant."

This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

The 'relevant' language was added to the Patriot Act when it came up for reauthorization; it was signed by President Bush in 2006.

In interviews with The Wall Street Journal, current and former administration and congressional officials are shedding new light on the history of the NSA program and the secret legal theory underpinning it. The court's interpretation of the word enabled the government, under the Patriot Act, to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.

The New York Times reports:

Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

Created by Congress in 1978 as a check against wiretapping abuses by the government, the court meets in a secure, nondescript room in the federal courthouse in Washington. All of the current 11 judges, who serve seven-year terms, were appointed to the special court by Chief Justice John G. Roberts Jr., and 10 of them were nominated to the bench by Republican presidents. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court.
...
Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. “That whole notion is missing in this process,” he said.

Andrew Rosenthal writes at The New York Times:

One of the problems with the debate over the necessity and legality of the National Security Agency’s data-mining program is that we’re having it in the dark. The surveillance programs are based on legal arguments delivered in secret by government lawyers to a court that operates out of public view and issues opinions that are classified as too secret for mere mortals to read.

For that reason, 16 members of Congress — a majority of them Republicans — recently filed a supporting brief for a lawsuit by the American Civil Liberties Union to compel the release of declassified versions of the Foreign Intelligence Surveillance Court’s opinions “evaluating the meaning, scope and constitutionality” of the relevant part of the Patriot Act, Section 215.

“We accept that free countries must engage in secret operations from time to time to protect their citizens,” Representative Justin Amash, Republican of Michigan, wrote in the brief. “Free countries must not, however, operate under secret laws. Secret court opinions obscure the law. They prevent public debate on critical policy issues and they stop Congress from fulfilling its duty to enact sound laws and fix broken ones.”