“During calendar year 2012, the Government made 1,856 applications to the
Foreign Intelligence Surveillance Court for authority to conduct electronic
surveillance and/or physical searches for foreign intelligence purposes.”
That somewhat opaque statistic was disclosed in the Justice Department’s
latest annual report to Congress on the Foreign Intelligence Surveillance
Act, filed on Tuesday. As is usually the case, none of the requests for
electronic surveillance were denied by the Court.
No matter how it is sliced and diced, the newly disclosed number of
applications does not yield much substance. It means that the government
submitted an average of 5 requests per day last year for intelligence
surveillance or physical search. It is about 5% higher than the number of
applications the year before (1,745), but quite a bit lower than the figure
from 2007 (2,371).
The number of applications does not correspond directly to the number of
targets, since multiple applications may be submitted in the course of an
individual investigation. Nor is the outcome of the surveillance or search
activity indicated in a way that would tend to validate or invalidate the
authorization after the fact.
In any case, the FIS Court did not deny any of the government’s requests
for authority to conduct electronic surveillance in whole or in part, the
report said, although unspecified modifications were made to 40 proposed
orders. The report does not say whether or not any requests for physical
search were disapproved or modified.
The government also made 212 applications for access to business records
and “tangible things” for foreign intelligence purposes, almost the same as
the 205 the year before.
And also in 2012, the FBI submitted 15,229 National Security Letter
requests for information concerning 6,223 different U.S. persons
(“excluding requests for subscriber information only”), down somewhat from
the 16,511 requests (concerning 7,201 different persons) the year before.
As an instrument of public oversight, the annual reports on FISA are only
minimally informative. They register gross levels of activity, but they
provide no measures of quality, performance or significance. Neither
counterintelligence successes nor failures can be discerned from the
reports. Nor can one conclude from the data presented that the FISA
process is functioning as intended, or that it needs to be curbed or
Congressional leaders blocked efforts to impose new or stronger public
reporting requirements when the FISA Amendments Act was reauthorized late
last year. However, Sen. Jeff Merkley and several Senate colleagues asked
the FIS Court to summarize its opinions in such a way as to facilitate
their eventual declassification and disclosure. This request has produced
no known results to date.
The FISA itself is a product of a rich period of political ferment in the
1970s when public and private institutions converged to promote increased
transparency, improved oversight and meaningful new constraints on
government authority. Investigative journalists wrote groundbreaking
stories, Congressional committees held historic hearings, political
activists and ordinary citizens mobilized to defend their interests,
leading to real and lasting changes. On the legislative front, these
included passage of an invigorated Freedom of Information Act, along with
the Privacy Act, the Government in the Sunshine Act, and the FISA, which
subjected intelligence surveillance activities to at least a degree of
independent judicial review.
An interesting account of that momentous period can be found in the new
book “Reining in the State: Civil Society and Congress in the Vietnam and
Watergate Eras” by Katherine A. Scott, University Press of Kansas, March
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
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