More Questions Than Answers On FISA Court’s Fourth Amendment Rulings


The New York Times has a long piece about the expansion of NSA powers and the FISA court’s Fourth Amendment rulings.

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving theNational Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Read the whole thing. Then read Orin Kerr’s assessment at The Volokh Conspiracy. It seems that this piece raises more questions than it answers. His conclusion:

Anyway, it will be fascinating to see what else we learn of these FISA court opinions. There has been a lot of recent pressure on the Administration to release the Kraken — er, I mean, release the FISC opinions. I would guess that this leak coming from “current and former officials” is an authorized leak designed to see if revealing some information will take the pressure off to reveal more. If I’m right, we’ll see if it works, or if this leak only creates more pressure to release the opinions or at least reveal more about them. (Read More)