A document purported to be a "declassifed" opinion by the secretive Foreign Intelligence Surveillance Court (FISC) was released on Tuesday, but legal and civil rights experts say it should be seen for what it truly is: an attempt by the US government to appear transparent and accountable that instead reveals the corrupt and negligible oversight process that governs the NSA's sweeping surveillance programs.
In the FISC document released Tuesday—which was only authored on August 29, 2013, months after the NSA scandal broke following disclosures from whistleblower Edward Snowden—the ruling by the court articulates why it believes the government's vast network of programs that collect consumers online and telephonic data are constitutional and do not violate the privacy rights of Americans.
As the Guardian reports, the ruling shows how the court is in "substantial agreement with the government's interpretation of its powers under the Patriot Act."
And Director of National Intelligence James Clapper welcomed the contents of the document, saying in a statement on Tuesday that it “affirms that the bulk telephony metadata collection is both lawful and constitutional.”
But legal experts say that this only shows the extent to which the FISC lacks an adversarial role when it comes to green-lighting government surveillance programs.
In part, the ruling is permissive of the NSA's grand scheme "to collect it all" by allowing the preemptive collection of bulk data—whether online or through telecommunication records—in case it may desire that information for crimes that have yet to take place.
"It's problematic because it means the government is allowed to collect records merely in anticipation of investigations," Patrick Toomey, a lawyer for the ACLU, told the Guardian in response to the new information.
The Guardian reporting also quotes Kurt Opsahl, a lawyer with the Electronic Frontier Foundation, who said: "There's not much daylight between what the government asserts and what the court determines."
And because advocates for consumers, privacy, or other interests are not allowed to present counter-arguments or briefs to the FISC, the ruling also reveals, said Opsahl, "the trouble with having a one-sided court process, where the court is only seeing arguments from one side and seems to adopt those arguments. It seems like a failure of the adversarial process."
And that dynamic is both prevalent and damaging, according to other critics.
“As a defense of the NSA’s mass collection of call records, the opinion issued today is completely unpersuasive," said Jameel Jaffer, deputy legal director for the ACLU. "Its Fourth Amendment analysis fails even to mention the landmark privacy case decided by the Supreme Court last year, U.S. v. Jones. On the whole, the opinion only confirms the folly of entrusting Americans’ privacy rights to a court that meets in secret and hears argument only from the government."
“The secret court endorsed the government’s ‘guilty until proven innocent’ approach,” said Elizabeth Goitein, co-director of the national security program at NYU Law School's Brennan Center for Justice. “In the NSA’s eyes, all of us are potential suspects, and none of our personal information is off-limits. Courts are supposed to protect Americans from this kind of overreaching, not enable it. But the opinion fails to consider or even mention some of the strongest arguments against bulk collection – including the NSA’s own history of non-compliance with the Court’s orders.”
Jaffer also pointed out that the document released on Tuesday is not a historical document at all, but one that was only recently composed after public outrage that followed from revelations made possible by NSA documents leaked to the media by whistleblower Edward Snowden.
“This isn’t a judicial opinion in the conventional sense," Jaffer argued, "it’s a document that was cobbled together over the last few weeks to justify a secret decision that was made seven years ago. The court should release the original authorization of the NSA phone spying program.”