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What Does Obama's Leaked FISA Court Ruling Tell Us?

What Does Obama's Leaked FISA Court Ruling Tell Us?

By Dennis Loo (8/22/13)

Today's NYT reports on Obama's release of a heretofore secret FISA (Foreign Intelligence Surveillance Act) Judge's 2011 ruling rebuking the NSA for repeatedly misrepresenting to the FISA Court what the NSA has been doing and exceeding its stated surveillance of foreign suspected terrorists to include all too many unrelated domestic electronic communications. 

Obama is releasing - i.e., leaking - this document in order to show a) FISA judges are not merely rubber-stamping NSA's requests for permission to surveil because here we have a FISA judge objecting to the NSA's activities, and b) that oversight can therefore be accomplished and the American people can feel "comfortable" that the invasions of their privacy are being properly supervised.

The actual ruling - redacted version - can be read here. There are a number of interesting aspects to this matter.

First, this leaked document was cherrypicked by the Obama Administration. They had to go back to 2011 to find anything that would fit their purposes of showing that FISA has some backbone and doesn't willy-nilly approve of everything that NSA asks for. Given that it is cherrypicked, it is still very revealing, as the most favorable case for the NSA, Obama, and the FISA Court.

As Judge John D. Bates states in his 85-page opinion at page 5, FISA's review of the NSA's application depend upon the NSA's representations of the scope of its data collection: "The Court's analysis and ultimate approval of the targeting and minimization procedures ... depended upon the government's representations of the scope of the collection." In other words, the only information FISA had was what the NSA itself deemed appropriate to show FISA. If Lance Armstrong could have independently decided what cup of urine he was going to share with those who test for illicit PEDs, and they didn't get to supervise him while he pee'd in their presence, then just how many Tour de France victories do you think he would have amassed and been able to still claim that he had "never failed a drug test"?

Second, Judge Bates notes in footnote 14 on page 5 further:

"The Court is troubled that the government's revelations regarding NSA's acquisitions of Internet transactions mark the third time in less than three years in which the government has disclosed a substantial misrepresentation regarding the scope of a major collection program."

We are supposed to be impressed that Bates rebukes the NSA in this way.

But you have to wonder, does this prove that the NSA is so trustworthy that it will, like George Washington, admit to chopping down the cherry tree, three times in less than three years, or does this prove that the NSA is a repeat offender, even based on its own self-interested confessions of violating the FISA Court's supervisory regime?

If this weren't so deadly serious and consequential you would be forgiven for laughing out loud at how ridiculous this is. Obama approves of this leak, but not the leaks by Edward Snowden that provoked Obama to have to reveal this in the first place, and not the leaks by Bradley Manning. No, those unauthorized leaks are bad and Obama's leaks are good. You can trust us folks! We're here to make you comfortable. The comments thread at the online edition of The NYT are in the vast majority clear that this showcase ruling released by Obama is not cause of comfort but cause for more fury.

As I have previously written, insiders who have been forced to become whistleblowers (no one, after all, seeks to become a whistleblower) all point out that the notion that Congress and the Judiciary can supervise the NSA (or any other federal bureaucracy such as the Pentagon or the FBI for that matter) is ludicrous.


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