By Joe Wolverton, II on August 28, 2013
originally posted at The New American
The National Security Agency was forced to de-classify a document, the contents of which make it easy to see why the snoops wanted it kept secret.
In an 85-page ruling handed down by Foreign Intelligence Surveillance Court (commonly known as the FISA court) judge John D. Bates, the NSA was called out “for repeatedly misleading the court that oversees its surveillance on domestic soil, including a program that is collecting tens of thousands of domestic e-mails and other Internet communications of Americans each year,” the New York Times reported on Thursday.
Bates found that the NSA routinely misled the court as to the scope of its domestic surveillance activities.
“The court is troubled that the government’s revelations regarding N.S.A.’s acquisition of Internet transactions mark the third instance in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program,” former FISA court chief judge Bates wrote in his ruling.
Most of the secret NSA programs recently brought to light by the Edward Snowden leaks are mentioned by Bates as being evidence of the NSA’s blatant disregard for the Constitution and for legal limits on its surveillance authority.
“Contrary to the government’s repeated assurances, N.S.A. had been routinely running queries of the metadata using querying terms that did not meet the standard for querying,” Judge Bates recounted. He cited a 2009 ruling that concluded that the requirement had been “so frequently and systematically violated that it can fairly be said that this critical element of the overall … regime has never functioned effectively.”
In a statement, Senator Ron Wyden (D-Ore.), a familiar foe of government abrogation of the Fourth Amendment, said it was about time Bates’ ruling was released by the government.
While the declassification of the FISA court’s ruling on the constitutionality of Section 702 collection procedures is an important addition to the public discussion being held on government surveillance authorities, its declassification is long overdue. And while the NSA eventually made changes to its minimization procedures in response to this ruling, the very collection it describes was a serious violation of the 4th Amendment and demonstrates even more clearly the need to close the back-door searches loophole that allows for the communications of Americans to be searched without a warrant if they are swept up under procedures that were intended to target foreigners.
Moreover, the ruling states that the NSA has knowingly acquired tens of thousands of wholly domestic communications under section 702 of the Foreign Intelligence Surveillance Act, even though this law was specifically written to prohibit the warrantless acquisition of wholly domestic communications. The FISA Court has noted that this collection violates the spirit of the law, but the government has failed to address this concern in the two years since this ruling was issued. This ruling makes it clear that FISA Section 702, as written, is insufficient to adequately protect the civil liberties and privacy rights of law-abiding Americans and should be reformed.
Questions about the NSA’s ability to effectively audit its own abuses of privacy laws and Fourth Amendment protections multiplied after representatives of the intelligence community were caught lying to Congress and the public about the scope of the surveillance.