Our secret court is totally transparent

Charlie Rose: Should this be transparent in some way?

Barack Obama: It is transparent. That’s why we set up the FISA court…. The whole point of my concern, before I was president — because some people say, “Well, you know, Obama was this raving liberal before. Now he’s, you know, Dick Cheney.” Dick Cheney sometimes says, “Yeah, you know? He took it all lock, stock, and barrel.” My concern has always been not that we shouldn’t do intelligence gathering to prevent terrorism, but rather are we setting up a system of checks and balances? So, on this telephone program, you’ve got a federal court with independent federal judges overseeing the entire program. And you’ve got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee — but all of Congress had available to it before the last reauthorization exactly how this program works.

Obama has said that there are tradeoffs between privacy and security in an age of international terrorism. But he emphasized that the two surveillance programs exposed this month were repeatedly authorized and reviewed by Congress, with federal judges "overseeing the entire program throughout."

Despite being overseen by judges, they are not examined in the way that a normal application for a search warrant is.

For decades, the government conducted warrantless wiretaps of people in the United States deemed to be a national security threat. But in 1978, after the U.S. Supreme Court ruled such warrantless searches unconstitutional, Congress passed legislation that created a special intelligence court to review government requests for warrants. The law was tweaked over the years, but the core of the court's powers remained unchanged for decades. If the government wanted to listen in on conversations or other communications in the U.S., it had to get a warrant from the foreign intelligence court based on individualized suspicion and probable cause to believe that national security was being compromised.

After 9/11, the Bush administration circumvented that law; President Bush authorized new surveillance programs without submitting them to the foreign intelligence court. After news reports blew the lid off the administration's dodge, Bush submitted to Congress proposed changes in the law, which were adopted in 2008. Those changes allowed the government to conduct the so-called PRISM program and monitor any and all conversations that take place between the U.S. and someone in a foreign country. No longer is there a requirement of individual targeting, observes Jameel Jaffer of the ACLU.

"It's a very different role that the FISA court is playing now than it played five years ago," Jaffer says. "The FISA court is just reviewing at a very programmatic level: Is the government targeting only international communications, or is it impermissibly targeting domestic ones? That's the only question that the FISA court asks."

In short, the FISA court is now far more removed from the specifics of targeting people for surveillance.

Former National Security Agency general counsel Stewart Baker concedes the point. "But let's remember that the reason they lost that authority was some aggressive actions on the court to enforce what was called the wall between intelligence and law enforcement," Baker says. "That may have cost us our best chance at catching the 9/11 hijackers ... before the hijackings."

As a result, the FISA court became "less a court than an administrative entity or ministerial clerk," says William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University. "They weren't reviewing law anymore; they were simply sort of stamping papers as approved or filed."

After 2008, Banks adds, the FISA court didn't "have a substantive review of these directives that come down the pike."

A secret NSA surveillance database containing millions of intercepted foreign and domestic e-mails includes the personal correspondence of former President Bill Clinton, according to the New York Times.

An NSA intelligence analyst was apparently investigated after accessing Clinton’s personal correspondence in the database, the paper reports, though it didn’t say how many of Clinton’s e-mails were captured or when the interception occurred.

The database, codenamed Pinwale, allows NSA analysts to search through and read large volumes of e-mail messages, including correspondence to and from Americans. Pinwale is likely the end point for data sucked from internet backbones into NSA-run surveillance rooms at AT&T facilities around the country.

Those rooms were set up by the Bush administration following 9/11, and were finally legalized last year when Congress passed the FISA Amendments Act. The law gives the telecoms immunity for cooperating with the administration; it also opens the way for the NSA to lawfully spy on large groups of phone numbers and e-mail addresses in bulk, instead of having to obtain a warrant for each target.

If an American’s correspondence pops up in search results when analysts sift through the database, the analyst is allowed to read it, provided such messages account for no more than 30 percent of a search result, the paper reported.

The NSA has claimed that the over-collection was inadvertent and corrected it each time the problem was discovered. But Rep. Rush Holt (D-New Jersey), chairman of the House Select Intelligence Oversight Panel, disputed this. “Some actions are so flagrant that they can’t be accidental,” he told the Times.