Law
5:12 pm
Mon June 10, 2013

FISA Court Has Approved Majority Of Surveillance Warrants

Originally published on Tue June 11, 2013 8:11 am

Transcript

MELISSA BLOCK, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.

AUDIE CORNISH, HOST:

And I'm Audie Cornish.

The revelations of the sweeping data surveillance by the U.S. government have opened a small window on a highly secretive corner of the law. When the NSA wants to eavesdrop on foreign communications or require huge amounts of data, it needs a warrant, a secret warrant. And for that, a request is sent to a secret court, the Foreign Intelligence Surveillance Court.

BLOCK: Tim Weiner has reported on intelligence and national security issues for many years, and has written books on the histories of both the CIA and the FBI.

Tim Wiener, welcome to the program.

TIM WEINER: Thank you.

BLOCK: Talk a bit about what led up to creation of the FISA court in 1978?

WEINER: At the heart of the Watergate affair that drove President Nixon from power was illegal bugging and wiretapping. After Nixon fell, Americans found out that the National Security Agency and the CIA had been spying on Americans. And that the NSA, the CIA, and the FBI had been opening mail and tapping phones without a warrant from a judge. And that's illegal as hell.

Now, if the target is a suspected spy or terrorist from another country, that's one thing. If it's an American, it's another. So the question was: How do you get a secret warrant? Well, you need a secret court and that's why the Foreign Intelligence Surveillance Court was created 35 years ago, in 1978.

BLOCK: Explain how the FISA court works. Who sits on it? Where does it meet?

WEINER: These are 11 federal judges, three of whom live in or within 20 miles of Washington, D.C. These are trial court judges. They are appointed for seven-year terms by the chief justice of the Supreme Court. They're on call all the time. And if I'm the FBI or the NSA, I go through the Justice Department. I call them up and say, listen, we need a search warrant. It can be done by cell phone.

The main thing about this court is that it is a secret court. And the Justice Department applies for these search warrants on behalf of the NSA or the FBI by itself. There's no defense lawyer...

(LAUGHTER)

WEINER: ...in the room.

BLOCK: Say a government request comes in to the FISA court, is that considered by a panel of judges, by one judge at a time? Who decides?

WEINER: The rules of procedure can be that a judge can grant a warrant. But when you get into complicated and uncharted terrain where there may be no precedent, where the law hasn't been tested, then you've got to convene. And there is even an appeals court from the FISA court which, to my knowledge, has met twice since 9/11, where you're really getting into serious constitutional issues.

BLOCK: It's interesting because the chief judge on the FISA court, Reggie Walton, did something very unusual. He responded to The Guardian's stories about this. And he said the perception that the court is a rubber stamp is absolutely false - those are his words. He said there is a rigorous review process and that everything the court does comports with the applicable statutes passed by Congress.

WEINER: And the judge is right because you can see - we do have information on this - that after 9/11 they started taking back dozens of these search warrant applications, saying you better rewrite this. You better check the facts. You better check the law because the power that's exercised under these warrants is enormous. And they can conceivably put our civil liberties at risk.

BLOCK: There is a lot about the FISA court that is secret. But they are aggregate numbers, right, that are released that show more than 20,000 requests to conduct domestic electronic surveillance that were made September 11th, 2001. And the overwhelming majority of those, correct, have been approved by the FISA court.

WEINER: Absolutely. It may be that they grant more than 99 percent of the requests but they look at them.

BLOCK: So the judges on this court might have the government modify their request, make it narrower in scope maybe or a shorter duration.

WEINER: We have the data to show that they kicked back roughly 70 or 80 requests in 2002 and 2003.

BLOCK: Tim Weiner, you have written and talked about what you call the Intel Industrial Complex and the huge expansion of what's going on in that world. What are the visible signs of how that has grown?

WEINER: Well, look at Mr. Snowden, who is at the center of this latest controversy.

BLOCK: The leaker.

WEINER: A high school dropout who is the IT guy, who winds up with security clearances above top secret and with access to programs so secret that senators and congressmen can talk about them. The enormous expansion of the Intelligence Industrial Complex after 9/11 - this is a 50 billion, $60 billion a year industry where you have giant corporations like Lockheed Martin or Booz Allen, who was Mr. Snowden's employer, that are kind of mirror images of the intelligence agencies themselves.

And you can walk out of the CIA after you've done five years there and you've got your top secret clearances and go to work for two or three times the money at Booz Allen, and then go sit at the CIA and the NSA and do your job. Who are you working for? Are you working for the government? Are you working for a multinational corporation? In theory, they serve the same end, which is the national security of the United States. In practice, it gets pretty tricky.

BLOCK: There's a big complex that's being built in Utah, right, that feeds into this Intel Industrial Complex that you're talking about?

WEINER: Yes, that is the latest manifestation of the National Security Agency's tremendous ability to gather intelligence. Now, collecting intelligence is one thing. Analyzing it and trying to find the needle in the haystack that might protect the national security of the United States, is quite another. You can collect until the end of time, who is going to analyze? Who's going to listen? Who is going to read?

Now, President Obama says we're not listening to your phone calls, we're just gathering...

(LAUGHTER)

WEINER: ...uncounted billions, trillions of data points that show - might show - patterns of behavior. Trying to get intelligence out of raw intelligence is like trying to get a drink of water out of a fire hose. So once again, our capacity to collect far exceeds our capacity to analyze and to act.

BLOCK: Tim Wiener, thanks very much.

WEINER: Thank you.

BLOCK: Tim Wiener, his most recent book is "Enemies: A History of the FBI." Transcript provided by NPR, Copyright NPR.