09-07-2013, 07:50 AM
Court's Classified Rulings Expanded Powers of NSA
FISA has evolved into a parallel of US high court
By Eric Lichtblau
July 08, 2013 "Information Clearing House - "New York Times"-- In one of their most important decisions, the judges expanded the use in terrorism cases of a legal principle known as the "special needs" doctrine and carved out an exception to the Fourth Amendment's requirement of a warrant for searches and seizures, the officials said.
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government's need to combat an overriding public danger.
Applying that concept more broadly, the FISA judges have ruled that the NSA's collection and examination of Americans' communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.
That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law used to justify airport screenings, for instance, or drunken-driving checkpoints and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects.
"It seems like a legal stretch," William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. "It's another way of tilting the scales toward the government in its access to all this data."
While President Obama and his intelligence advisers have spoken of the surveillance programs leaked by Snowden mainly in terms of combating terrorism, the court has also interpreted the law in ways that extend into other national security concerns.
In one recent case, for instance, intelligence officials were able to access an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran's nuclear program.
In the past, that probably would have required a court warrant because the suspicious e-mail involved American communications.
In this case, however, a little-noticed provision in a 2008 law, expanding the definition of "foreign intelligence" to include biological, chemical, and nuclear weapons, was used to justify access to the message.
The court's use of that language has allowed intelligence officials to get wider access to data and communications that they believe may be linked to nuclear proliferation, the officials said. They added that other secret findings have eased access to data on espionage, cyber attacks and other possible threats connected to foreign intelligence.
"The definition of foreign intelligence' is very broad," another former intelligence official said in an interview. "An espionage target, a nuclear proliferation target, that all falls within FISA, and the court has signed off on that."
The official, like a half-dozen other current and former national security officials, discussed the court's rulings and the general trends they have established on the condition of anonymity because they are classified. FISA court judges refused to comment on the scope and volume of their decisions.
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.
FISA has evolved into a parallel of US high court
By Eric Lichtblau
July 08, 2013 "Information Clearing House - "New York Times"-- In one of their most important decisions, the judges expanded the use in terrorism cases of a legal principle known as the "special needs" doctrine and carved out an exception to the Fourth Amendment's requirement of a warrant for searches and seizures, the officials said.
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government's need to combat an overriding public danger.
Applying that concept more broadly, the FISA judges have ruled that the NSA's collection and examination of Americans' communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.
That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law used to justify airport screenings, for instance, or drunken-driving checkpoints and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects.
"It seems like a legal stretch," William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. "It's another way of tilting the scales toward the government in its access to all this data."
While President Obama and his intelligence advisers have spoken of the surveillance programs leaked by Snowden mainly in terms of combating terrorism, the court has also interpreted the law in ways that extend into other national security concerns.
In one recent case, for instance, intelligence officials were able to access an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran's nuclear program.
In the past, that probably would have required a court warrant because the suspicious e-mail involved American communications.
In this case, however, a little-noticed provision in a 2008 law, expanding the definition of "foreign intelligence" to include biological, chemical, and nuclear weapons, was used to justify access to the message.
The court's use of that language has allowed intelligence officials to get wider access to data and communications that they believe may be linked to nuclear proliferation, the officials said. They added that other secret findings have eased access to data on espionage, cyber attacks and other possible threats connected to foreign intelligence.
"The definition of foreign intelligence' is very broad," another former intelligence official said in an interview. "An espionage target, a nuclear proliferation target, that all falls within FISA, and the court has signed off on that."
The official, like a half-dozen other current and former national security officials, discussed the court's rulings and the general trends they have established on the condition of anonymity because they are classified. FISA court judges refused to comment on the scope and volume of their decisions.
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.
"The philosophers have only interpreted the world, in various ways. The point, however, is to change it." Karl Marx
"He would, wouldn't he?" Mandy Rice-Davies. When asked in court whether she knew that Lord Astor had denied having sex with her.
“I think it would be a good idea” Ghandi, when asked about Western Civilisation.
"He would, wouldn't he?" Mandy Rice-Davies. When asked in court whether she knew that Lord Astor had denied having sex with her.
“I think it would be a good idea” Ghandi, when asked about Western Civilisation.