FISA court releases disturbing opinion as international community joins resistance to NSA abuses

A victory in Asheville for civil rights and communities of color
September 28, 2013
Challenging the Surveillance State
October 5, 2013

On September 17, Judge Claire Eagan of the secret FISA court declassified an August 29 legal opinion, responding to mounting public concerns about transparency. On the one hand, allowing the public and press to see the order–which approved mass surveillance without individual suspicion–represents a significant step forward from the prior practice of issuing sweeping judicial orders eroding constitutional rights without any visibility to the public, or even the rest of the federal judiciary. On the other hand, the declassification of the court opinion ultimately confirmed widespread fears that the court’s substantive jurisprudence offends basic constitutional rights. The order predictably restates the government position, without any checks and balances of the sort that courts were created to impose. Indeed, the court’s reasoning is flatly indefensible. First, the court accepted a standard of “relevance” under Section 215 of the PATRIOT Act without any relationship to the normal meaning of the term. In fact, the court’s interpretation of “relevance” essentially removes it as a statutory constraint, enabling the government to monitor the entire country, regardless of whether individuals are suspected of any crime. Second, the court bizarrely analogized the Supreme Court’s 1979 acceptance of a pen register (able to track the phone numbers called from a particular phone number) sought by police in response to a robbery, on the one hand, to blanket dragnet surveillance operating constantly across potentially millions of Americans unsuspected of any particular crime, on the other. Beyond the disturbing acquiescence to executive fiat implicit in the judicial ruling, other process problems remain: the FISA court still hears only one side of every case, and while this opinion was declassified, most others remain secret. Fortunately, several of the many congressional proposals to restrict NSA powers would address the composition of the FISA court and its transparency. Unfortunately, fixing the FISA court is not nearly enough. Government powers enabling dragnet surveillance must be substantively–and dramatically–curtailed. On September 21, the New York Times endorsed the Surveillance State Repeal Act, introduced by Former House intelligence committee chair Rush Holt (D-NJ) and championed by the Bill of Rights Defense Committee since August. Alone among the various pending congressional proposals, the Holt bill would repeal the entire PATRIOT Act and 2008 FISA amendments, forcing the government to justify its authorities from the pre-9/11 baseline, rather than accepting the bush administration’s illegal activities as legitimate. While Congress moves to conduct long-overdue oversight and finally enact affirmative restrictions on NSA spying, the international community has also grown vocal. Protests in Germany over NSA spying impacted national elections there, and Brazil’s president, Dilma Rousseff, cancelled an official visit to Washington before going on to propose a variety of measures to allow Brazilian Internet users to evade the NSA dragnet. She also sharplycriticized NSA abuses at the United Nations on September 24, saying:

Personal data of citizens was intercepted indiscriminately. Corporate information – often of high economic and even strategic value – was at the centre of espionage activity…Tampering in such a manner in the affairs of other countries is a breach of international law and is an affront of the principles that must guide the relations among them, especially among friendly nations….The right to safety of citizens of one country can never be guaranteed by violating fundamental human rights of citizens of another country.

Grassroots resistance to NSA spying is growing around the country, and will continue until the agencies’ various abuses are ended once and for all. A national coalition of groups in the Stop Watching Us coalition, including BORDC, will organize a rally near the capital in Washington DC on October 26, and BORDC will continue working with local grassroots coalitions to force a public debate on these vital issues and ensure a meaningful government response.