America’s ‘Shadow’ Supreme Court Exposed
Their ‘Chief Justice‘ has opened the door to unprecedented domestic surveillance:
The chief judge of America’s most powerful secret court is a 64-year old man who has said his path toward the law began in part when he was stopped by police in the early 1960s simply for being black, and who once said he became a lawyer to “make an impact on the quality of life for people of color in this country.”
Reggie Walton is the Presiding Judge of the Foreign Intelligence Surveillance Court, whose 11 members are appointed directly by the chief justice of the Supreme Court. Revelations of broad spying by the National Security Agency have drawn unusual attention to the Court, which the New York Times reported Sunday “has created a secret body of law giving the National Security Agency the power to amass vast collections of data.”
Walton has not spoken publicly about his role, and did not respond to an inquiry from BuzzFeed: People who know him spoke largely on the condition of anonymity. But in little-read interviews and in decisions, footnotes, and statements from the bench, Walton has offered clues at a worldview whose contours mirror the growing public comfort with an expansive role for law enforcement in Americans’ lives. A judge who one former clerk described as “fair but harsh” in his sentences, he has shown a liberal streak on social policy from incarceration to drug crime, but has been dismissive of questions about the limits of executive power.
So how did the FISA court suddenly find itself with unprecedented power? Simple: by redefining the word ‘relevant’!
The National Security Agency’s ability to gather phone data on millions of Americans hinges on a secret court ruling that redefined a single word: “relevant.”
This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that “relevant” could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.
In interviews with The Wall Street Journal, current and former administration and congressional officials are shedding new light on the history of the NSA program and the secret legal theory underpinning it. The court’s interpretation of the word enabled the government, under the Patriot Act, to collect the phone records of the majority of Americans, including phone numbers people dialed and where they were calling from, as part of a continuing investigation into international terrorism.
“Relevant” has long been a broad standard, but the way the court is interpreting it, to mean, in effect, “everything,” is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department’s primary authority on federal criminal surveillance law.
Meanwhile, an advocacy group is going to that other supreme court – you know, the one that’s known as the U.S. Supreme Court – to stop the NSA’s mass spying:
The group, the Electronic Privacy Information Center, says it is taking the extraordinary legal step of going directly to the Supreme Court because the sweeping collection of the phone records of American citizens has created “exceptional circumstances” that only the nation’s highest court can address.
The group, based in Washington, also said it was taking its case to the Supreme Court because it could not challenge the legality of the N.S.A. program at the secret court that approved it, the Foreign Intelligence Surveillance Court, known as the FISA court, and because lower federal courts did not have the authority to review the secret court’s orders.
In its petition, the group said the FISA court had “exceeded its statutory jurisdiction when it ordered production of millions of domestic telephone records that cannot plausibly be relevant to an authorized investigation.”