Despite the revelation of the National Security Agency program called Prism, how it is controlled remains largely secret.
Government officials try to reassure average citizens that they are protected from invasion of their privacy by oversight exercised by both the courts and Congress on Prism and other programs under the Patriot Act.
The government must first seek approval from the so-called FISA court to spy on Americans. FISA is the Foreign Intelligence Surveillance Act, first enacted in 1978. Until last week, few people had ever heard of the FISA court.
The FISA court consists of 11 federal district court judges, appointed by the chief justice of the Supreme Court. They may be scattered around the country but at least three must be near Washington so decisions may be obtained quickly.
Only one judge deals with each case, which may only be brought by the government. Any other affected party does not even know there is a case under consideration, and gets no chance to oppose the government request.
If the government is turned down, it has no appeal and cannot go to another FISA judge for a second try. Of course, any other unwitting party cannot appeal, because it never knew there was a court proceeding and, when it receives a FISA court order, it must maintain absolute secrecy.
Last year, the government filed 1,789 requests to the FISA court. One was withdrawn, 40 were modified. All the rest were approved.
The public has become aware of the political divide in the courts. Judges appointed by Republican presidents are likely to be more conservative than those appointed by Democratic presidents. That’s why GOP senators are now trying to block some Obama judicial appointments.
Chief Justice John Roberts is a Republican appointee. Perhaps not surprisingly, the 2012 FISA court, selected by him, was composed of nine Republican appointees and only two Democratic appointees. Neither of them sits near Washington, while three of Robert’s partymates sit in the District of Columbia.
The judge who allowed the Verizon data gathering was GOP-appointee Judge Roger Vinson of the district court in Pensacola, Florida, the same judge who hastened to be the first to rule that Obamacare was unconstitutional. His opinion was later overruled by the Supreme Court.
Vinson’s role at least raises the question that the unusually conservative judge may possibly be more likely to give greater weight to government requests for national security access to records than to civil liberties concerns not represented before him.
The Senate must approve all federal court judges and gives nominees careful scrutiny. But it has no role in approving FISA court judges, whose activities on that court are often far more significant than routine district court matters.
The Senate and House Intelligence Committees have oversight on Patriot Act programs and activities. It is unclear just what power the committees can exercise, because they cannot share what they know with other members of Congress.
Committees have no authority to give orders to executive agencies, and Congress as a whole usually has limited information on which to act.
Last week, President Obama tried to reassure the public, saying: “Your duly elected representatives have been consistently informed on exactly what we are doing.”
He implied you are being protected by members of Congress, all 535 of them. But that cannot be true unless your “duly elected” representative happens to sit on an intelligence committee.
Sen. Angus King serves on the Senate Intelligence Committee and has been attending its regular meetings for the past five months. He reported that he “did not know the specifics of the two programs that were revealed [last] week.”
King’s experience shows the committee had not been “consistently informed.” Possibly only the committee members at the time the program was launched were aware of its specifics.
The lack of adequate and verifiable supervision could lead to executive agencies regarding the Patriot Act as almost a blank check to do whatever they deem fit to protect national security.
Without real controls on Prism, the program may lead to an innocent person, for example a student conducting research on al-Qaeda, becoming the target of investigation simply because of phone calls or Internet searches.
Many people agree that some personal sacrifices are required to protect the country, but they could have reasonable concerns that government privacy controls may be insufficient or unenforced.
No comments:
Post a Comment