SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2009, Issue No. 46
May 18, 2009

Secrecy News Blog: http://www.fas.org/blog/secrecy/

TWO NEW JUDGES FOR THE FISA COURT

The Chief Justice of the U.S. Supreme Court has appointed two new judges to the eleven-member Foreign Intelligence Surveillance Court, a spokesman for the Court said today.

Judge Thomas F. Hogan of the D.C. District Court and Judge Susan Webber Wright of the Eastern District of Arkansas were each appointed to seven-year terms on the Court, expiring May 18, 2016, said spokesman Sheldon Snook.

They replace Judge Robert C. Broomfield and Judge Colleen Kollar-Kotelly, whose terms on the FIS Court expired today. Judge John D. Bates, who was appointed to the Court in 2006, takes over from Judge Kollar-Kotelly as Presiding Judge of the Court.

The FIS Court reviews government applications for electronic surveillance and physical search of suspected foreign intelligence and terrorist targets under the Foreign Intelligence Surveillance Act of 1978. The current membership of the Foreign Intelligence Surveillance Court may be found here:

FISA SURVEILLANCE DOWN, NSL REQUESTS UP IN 2008

During calendar year 2008, the Foreign Intelligence Surveillance Court approved 2,083 applications for authority to conduct electronic surveillance and physical search of suspected foreign intelligence and terrorist targets under the Foreign Intelligence Surveillance Act, according to a new annual report to Congress from the Justice Department. The Court made substantive modifications to two applications and denied one application.

This is a decrease from calendar year 2007, when the Court approved 2,370 applications for electronic surveillance and physical search, modified 86 applications, and denied three (and one "in part").

The new report also states that in 2008 the FBI made 24,744 "national security letter" (NSL) requests for information concerning 7,225 different United States persons. In 2007, according to newly revised figures included in the report, the FBI made 16,804 NSL requests pertaining to 4,327 different United States persons. National security letters are obligatory demands for information or records, comparable to subpoenas but without judicial oversight. The scope of such instruments was expanded by a provision of the USA Patriot Act.

See the 2008 annual report to Congress on the Foreign Intelligence Surveillance Act, transmitted May 14, 2009:

The Congressional Research Service discussed "Amendments to the Foreign Intelligence Surveillance Act Set to Expire in 2009" in a report that was updated March 16, 2009:

KENNETH BASS ON AMENDING FISA

The late Kenneth C. Bass, who helped draft the Foreign Intelligence Surveillance Act of 1978 and who was the first Counsel for Intelligence Policy at the Justice Department, later became a critic of its implementation and a proponent of remedial measures.

In a 1994 congressional hearing, he urged lawmakers to introduce elements of an adversarial process into the FISA Court, such as appointing an advocate for the proposed target, so that judges would have a more complete and nuanced record on which to base their decisions to approve surveillance and physical search. See "Amending the Foreign Intelligence Surveillance Act," hearing before the House Permanent Select Committee on Intelligence, July 14, 1994:

In 2002 testimony, he reiterated this proposal and told a Senate Judiciary Committee hearing on the FISA process that it should also "obtain more information and make it public."

Neither recommendation was acted upon, and the efficacy of the FISA as a legal constraint upon intelligence surveillance would soon be diminished by the Bush Administration's circumvention of its procedural requirements.

Kenneth Bass was remembered in "Justice Official Helped Pen Surveillance Act" by Patricia Sullivan, Washington Post, May 2, 2009:

"Laws never prevent lawlessness," Mr. Bass said at the 1994 hearing. "But they are designed to check it and give somebody else a second view of what to do with it."

Kate Martin of the Center for National Security Studies, who also testified at that hearing, told Committee members that Mr. Bass' proposal for an adversarial review of FISA applications was unobjectionable but that by itself it would not cure the constitutional infirmities of FISA.

"The Constitution is not a perfect information gathering system for the government," Ms. Martin said.

ENERGY DEPARTMENT ACTIVITIES INVOLVING FISA

Although the Department of Energy is not one of the agencies that performs intelligence surveillance or physical search under the Foreign Intelligence Surveillance Act, it does occasionally play a role in providing analytical support to other agencies such as the FBI that do conduct FISA surveillance.

A recent DOE Inspector General report noted four cases that were "referred by the FBI [to the Department of Energy Office of Intelligence] for analysis of raw data collected under FISA court orders." The report does not specify the nature of the raw data or the reason the four cases were referred to the Energy Department, though one may speculate that the data concerned nuclear weapons-related information rather than, say, novel designs for wind turbines.

No violations of law were found by the Inspector General, but the report said DOE improperly failed to respond to one of the four FBI FISA referrals for more than a year. See "Letter Report on "Selected Aspects of the Department of Energy's Activities Involving the Foreign Intelligence Surveillance Act," DOE Inspector General, May 6, 2009:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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