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Secret Surveillance Court Bends Rules of Language and Law

Report reveals the 11-judge panel, the 'ultimate arbiter' of the surveillance state, hand-selected by Justice John Roberts

- Lauren McCauley, staff writer

The secret court which authorizes the phone and internet surveillance of millions of individuals worldwide is bending the rules of language and law—according to a series of recent reports—as the 11 hand-picked judges ascend to "ultimate arbiter" on all surveillance issues shaping intelligence practices "for years to come."

(Photo: SalFalko/ cc/ Flickr) In a Wall Street Journal piece published Monday, reporters Jennifer Valentino-DeVries and Siobhan Gorman detail how the secret Foreign Intelligence Surveillance Court, known as the FISA court, has legally manipulated the definition of the word "relevant" to include "an entire database of records on millions of people," recently revealed by National Security Agency whistleblower Edward Snowden.

According to Section 215 of the Patriot Act, the government is permitted to seek secret court orders for the handing over of "any tangible thing" including records, "relevant to an authorized investigation" regarding a foreign-intelligence or terrorism investigation.

"The history of the word 'relevant' is key to understanding that passage," write Valentino-DeVries and Gorman. They explain:

The Supreme Court in 1991 said things are "relevant" if there is a "reasonable possibility" that they will produce information related to the subject of the investigation. In criminal cases, courts previously have found that very large sets of information didn't meet the relevance standard because significant portions—innocent people's information—wouldn't be pertinent.

But the Foreign Intelligence Surveillance Court, FISC, has developed separate precedents, centered on the idea that investigations to prevent national-security threats are different from ordinary criminal cases.

[...] According to the court, the special nature of national-security and terrorism-prevention cases means "relevant" can have a broader meaning for those investigations, say people familiar with the rulings.

"Relevance is a very broad standard that could arguably justify the collection of all kinds of information about law-abiding Americans," said former Sen. Russ Feingold, arguing for stricter wording during the 2006 re-authorization of the Patriot Act when Congress added this term to the law.

Senators Ron Wyden (D-Ore.) and Mark Udall (D-Colo.) have long sounded the alarm over this issue, which they've condemned as a "secret interpretation" of the Patriot Act. However, because the secret court's rulings are considered classified, they are thus "almost impossible to challenge."

The New York Times, which on Saturday published a story also reporting on the covert expansion of these laws, details some of the "nearly 100 pages of rulings" which have expanded the FISA court's role "by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny."

"It has quietly become almost a parallel Supreme Court," writes the Times' Eric Lichtblau, "serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come."

Further, the 11-judge panel charged with these broad, classified interpretations (and subsequent information sweeps) are not an elected body but are rather hand-selected by Chief Justice of the Supreme Court John Roberts.

Referred to by MSNBC's Alex Wagner as "the other John Roberts court," these 11 justices—10 of which are Republican appointees—are the sole jurors for the entire US surveillance state.

As the Washington Post's Ezra Klein points out, no other part of US law works this way. "[W]hen it comes to surveillance," he writes, "the composition of the bench is entirely in [Roberts'] hands, and, as a result, so is the extent to which the National Security Agency and the Federal Bureau of Investigation can spy on citizens."

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