A digital rights advocacy group is pushing for the release of a document that could shed light on the activities of the secret Foreign Intelligence Surveillance Court, which for years has quietly authorized both the physical and electronic surveillance of people in the U.S. without their knowledge.
The Electronic Frontier Foundation is challenging the Department of Justice’s reasons for keeping the court’s decisions under lock and key. The group has requested the release of a secret document that details the government’s interpretation of the Foreign Intelligence Surveillance Act of 1978.
The public gained knowledge of the document last year when Sen. Ron Wyden (D-Ore.) announced that the court had ruled “on at least one occasion” that spying on American citizens, including under FISA, was “unreasonable under the Fourth Amendment.”
Wyden didn’t share any specific examples or details of how the government’s surveillance was unlawful, which is why the Electronic Frontier Foundation decided to file a suit in district court to make the 86-page document public.
The Department of Justice has been reluctant to comply, stating in a court memorandum that if the document is published it could result in “exceptionally grave and serious damage” to national security.
The Department of Justice has also said that it would have to obtain approval from the judge who authored the piece before the document was published. As a result, the foundation went directly to the court in their efforts to publicize the document.
Judge Reggie Walton said the Department of Justice had until June 7 to respond to the request.
According to Slate, Wyden said the court “found that the U.S. government acted unconstitutionally in its implementation of the so-called minimization procedures that were intended to limit how data on Americans are collected and retained.” Wyden said “the government was found to have circumvented the spirit of the FISA,” which civil liberties groups claim effectively allows “dragnet surveillance.”
As Mint Press News previously reported, under FISA, the government is allowed to electronically eavesdrop on American citizens’ phone calls and emails without a warrant if it is believed the individual is communicating with someone outside the U.S.
For law enforcement, obtaining a secret search warrant under FISA is a simple matter of filing a request. In 2012, 100 percent of the 1,856 applications were approved, even though the person or group under surveillance is not identified in the application, nor is the location where the person or group is being surveilled.
Even if a request for a warrant is denied, law enforcement can begin surveillance before the warrant is issued and continue monitoring during an appeals process.
David Kris, a former top anti-terrorism attorney at the Justice Department, says the act gives the government too much power. He said the language of 2012’s FISA Amendments Act gives the government “nearly-carte-blanche spying powers.”
In the 2012 edition of “National Security Investigations and Prosecutions,” Kris explained how the process works:
“For example, an authorization targeting ‘al Qaeda’ — which is a non-U.S. person located abroad — could allow the government to wiretap any telephone that it believes will yield information from or about al Qaeda, either because the telephone is registered to a person whom the government believes is affiliated with al Qaeda, or because the government believes that the person communicates with others who are affiliated with al Qaeda, regardless of the location of the telephone.”