After revelations surrounding the systematic abuse and overreach of U.S. government surveillance in the mid-1970s, the U.S. Senate – led by the Church Committee – passed the Foreign Intelligence Surveillance Act (Fisa) in 1978 that made it a criminal offense for the government to “eavesdrop” without obtaining a warrant from a “Fisa court”. Housed in the Department of Justice, the Fisa court is convened in total secrecy, its rulings are classified, and the “probable cause” burden of the 4th Amendment is radically diluted.
For Glenn Greenwald, it is the ultimate “rubber stamp court” – having rejected only 34 applications in its 34 year history, while approving over 20,000 (note that this is just for personalized acts of surveillance – generalized surveillance programs are not counted).
Despite how obedient and compliant this court always was, the Bush administration decided in late 2001 that it would have its National Security Agency (NSA) intercept the calls and emails of Americans without bothering to obtain the Fisa court approval required by the criminal law, claiming – with a straight face – that complying with the law was “too cumbersome” in the age of Terrorism. Once this lawbreaking was revealed by the New York Times in late 2005, the response from the DC political class was not to punish the responsible government officials for their lawbreaking, but rather to enact a new law (called the Fisa Amendments Act of 2008) that, in essence, simply legalized the warrantless eavesdropping scheme of the Bush administration.
With recent Congressional rumours floating around over a “drone court” that would deliberate in matters of whether or not a strike was legal, the Fisa court reminds us that the “independence” of such a system would be seriously limited.
It’s one thing to have a secret court that lends a veneer of legality and legitimacy to the government’s rampant spying behavior. It’s quite another to have one that authorizes the government to kill people who have never been charged with, let alone convicted of, any actual crime. But it’s a rather powerful reflection of how warped our political culture has become that a secret, unaccountable, one-sided “court” is being widely proposed to issue execution warrants, and that this is the “moderate” or even “liberal” position. How anyone could look at the Fisa court and want to replicate its behavior in the context of presidential executions is really mystifying.