Federal Court Says NSA PRISM Surveillance Good And Legal Because The Gov't Said It Was Good And Legal

from the 'those-DOJ-guys-are-real-straight-shooters' dept

Three years after its inception, a prosecution involving possibly unlawful FISA-authorized surveillance, hints of parallel construction, and a very rare DOJ notification of Section 702 evidence has reached a (temporary) dead end. The defendants challenged the evidence on multiple grounds -- many of which weren't possible before the Snowden leaks exposed the breadth and depth of the NSA's domestic surveillance.

The federal judge presiding over the case -- which involved material support for terrorism charges -- has declared there's nothing wrong with anything the NSA or FISA Court did, so long as the surveillance was authorized and possibly had something to do with national security. (via FourthAmendment.com)

First, the defendants -- all accused of providing material support to Al Qaeda (remember them?) -- asserted the constitutionality of the NSA's upstream collections should be revisited in light of the Snowden leaks. The court [PDF] says these more-recent exposures are no reason to upset the precedential apple cart.

Controlling precedent decides this issue. In 2005, the Sixth Circuit rejected a Fourth Amendment challenge to FISA's procedures. The court explained in Damrah that the defendant's Fourth Amendment challenge lacked merit, as "FISA has uniformly been held to be consistent with the Fourth Amendment." Damrah has not been overturned or altered in light of the public disclosures regarding PRISM and upstream collections. And consequently, Damrah forecloses Defendants' constitutional challenge.

So, to add this all up: leaked documents from 2013 onward, exposing routinely-abused programs that massively expanded following the 2008 FISA Amendments Act, mean nothing when stacked up against a 2005 case predating the NSA's admissions of surveillance abuse and the exposure of the FBI's backdoor searches of domestic communications.

Furthermore, the court declares -- based on documents provided by the government directly to the court, but not to the defendants (in ex parte hearings) -- the FISA-authorized surveillance was on the up-and-up because the government provided documents declaring the FISA-authorized surveillance was on the up-and-up.

The court is sympathetic to those on the other side of the deck it helped stack, but only barely.

I recognize the challenge faced by a defendant in making a substantial preliminary showing that a FISA application contains a false statement when the defendant does not have access to the application. But the threshold burden exists nonetheless. [...] And here, Defendants have failed to satisfy that burden.

Oddly, the court then decides, after pulling from a 2005 decision and ignoring every FISA-related development since then, that previous domestic surveillance violations by the FBI have no bearing on this case.

The Government's errors from more than a decade ago [referring to a 2004 IG report about post-9/11 surveillance] do not amount to a substantial preliminary showing that an application for FISA collection relevant to this case contains a false statement which was knowingly or recklessly made and necessary to the finding of probable case.

Yes, this is true. These are not comparable things. But with the defendants unable to review the FISA applications, they're left with the judge's take as guided by government submissions -- submissions the defendants are also unable to review or even argue.

As for the Fourth Amendment challenge to Section 702 surveillance generally, the court says there's really no Fourth Amendment issues as this does not apply to "aliens in foreign territory." The court goes even further, though, suggesting the collection of communications outside of the country does not even require a warrant, even if it "inadvertently" sweeps up Americans' communications during the process.

Since the court has also unilaterally decided it can -- unaided by anyone but the government -- decipher the government's FISA-related submissions, there are no due process violations even if the defendants are prevented from viewing, analyzing, or rebutting the claims made by the government during these ex parte sessions. In the end, there's nothing left for the defendants to do but appeal, which will certainly happen what with the court dismissing out of hand the evidence provided by multiple leaked documents and documents officially released by the Director of National Intelligence. To buy the government's claims of above-board surveillance in secret court sessions and declare those NATSEC Kosher seems like a very close-minded move that grants the government more deference than documents the government released publicly itself shows it has earned.

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Filed Under: 4th amendment, fisa, fisa court, fisc, mass surveillance, nsa, prism, privacy, surveillance