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Report: FISA Court Has Crafted Entirely New Covert Body of Law
As Obama Administration Fights ACLU Illumination Efforts
by Karl Bode 09:11AM Monday Jul 08 2013
According to the New York Times, the Foreign Intelligence Surveillance Court (FISC, aka FISA Court) has, through a dozen classified rulings, created an entirely new and "secret body of law" by which the NSA covertly operates. That the government was covertly crafting vast new interpretations of law was something hinted at previously by Senators, but the Times story confirms that FISC has "become almost a parallel Supreme Court."

This is a court that appears to never have refused a single request for surveillance, but refuses every and all citizen FOIA request. Notably, FISC has taken a relatively small 1989 doctrine known as "special needs" and dramatically expanded it to justify wholesale spying on United States citizens:
The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. "It’s another way of tilting the scales toward the government in its access to all this data."
The disclosures come as the ACLU is suing to have more light shed on the court's processes, something the Obama Administration is fighting tooth and nail.

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