This Message is UNCLASSIFIED: FISA Explained

The Foreign Intelligence Surveillance Court was created by Congress in
1978 to review applications for warrants related to national security
investigations.  According to the Federal Judicial Center website, initially the court
was created in part as a response to allegations that the executive
branch was abusing its authority in conducting domestic electronic
surveillance in the interest of national security. (Sounds familiar,
doesn’t it?) Presumably the goals of the court have been to preserve
an air of fairness in relation to what are otherwise sensitive issues of
national security dominated by the executive branch.

But, it’s fairly disconcerting to have a court creating a body of law
that is essentially kept a secret from the public. So in February,
Senator Diane Feinstein sent a letter to presiding judge of FISA,
requesting that “important rulings of law” be declassified by FISA
to inform the public about FISA.

In 2010, the Office of the Director of National Intelligence and the
Department of Justice established a process to declassify opinions that
are “assessed to contain a significant interpretation of law,” but the
policy never really took hold. The court’s presiding judge Reggie
Walton, wrote in response to Feinstein’s letter that, “While
classification determinations are made by the Executive Branch in the
first instance, the facts presented in applications to [FISA] always
or almost always involve classified intelligence activities, the
disclosure of which could be harmful to the nation’s security.”

So it seems that while FISA was originally formed as a response to
the Executive branch’s abuse of authority, it really just serves as a
mechanism by which that same branch can maintain an authoritative
stranglehold on national security practices through the language of
“classification.” As a result, the power of FISA is as great as the
executive branch’s power to classify, which is always growing.

Perhaps there are highly sensitive issues that FISA is protecting,
but a judicial policy to protect information “classified” by the
government is especially problematic when the government is known to
over-classify. The real question is, are the the “classified intelligence activities” that
Reggie Walton claims FISA’s secrecy protects truly of a sensitive
and detrimental nature to our nation’s security, or just more instances of the
government classifying information to protect itself from public scrutiny?

Alison Frimmel, Research Fellow
Center for Policy and Research

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