In 2012, the Foreign Intelligence Surveillance Court (FISC) approved every single one of the federal government’s 1,856 applications made to it for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes. Beyond that small disclosure, the FISC is a prime example of the high walls of secrecy built around national security and intelligence.
As Steve Aftergood of Secrecy News notes, the annual reports on FISA cast only a dim light on the surveillance program—a measure of activity without indications of the program’s effectiveness or insight into the courts’ decision-making. While the public learns that modifications were made to 40 proposals, there is no reporting on what these modifications were and how they set standards for the protection of people’s privacy or civil liberties.
The 112th Congress had an opportunity to inject more oversight and accountability into the court last year when it passed the FISA Amendments Act. Instead, Congress rejected amendments like Senator Jeff Merkley’s that would have required declassification of the FISC opinions, the provision of unclassified summaries of the opinions, or, at a minimum, summarizations of the attempts to declassify the opinions. Instead, Congress simply reauthorized the Act for five years.
In June 2010, U.S. officials initiated a review of “significant” classified rulings by the court to identify any that could be redacted for public release. Three years later, none have been released. Our partner the Electronic Frontier Foundation headed a Freedom of Information Act lawsuit for the opinions. That lawsuit resulted in the receipt of wholly-redacted summaries of the opinions provided to Congressional Intelligence Committees.
The opacity of the FISC and surveillance program extends even further. As Aftergood notes, the number of applications does not correspond to the number of targets. Additionally, in June 2012, the Inspector General of the Intelligence Community absurdly asserted that even providing an estimate of the number of United States citizens who had their communications collected by the National Security Agency “would itself violate the privacy of U.S. persons.”
The small amount of information publicly available about the conduct of the Foreign Intelligence Surveillance Court, a 100 percent approval rate of requests made to it, and stone-walled efforts to learn more about the surveillance program, make the FISC a mascot of national security secrecy. It is also a prime example of secret law that affects the lives of the public without their knowledge, consent, or recourse. It’s time to increase public reporting and shine a light on the FISC and surveillance program.