Courts, DOJ tussle over Fourth Amendment violations and the NSA

A current legal action, based on one senator’s comments, could reveal specifics about a case where the National Security Agency may have violated the Fourth Amendment while conducting surveillance on Americans.

The Foreign Intelligence Surveillance Court, or FISC, rules in secret on requests from the NSA to access the private information of American citizens, or information hosted on U.S.-based computer systems.

Those requests became part of a media firestorm last week, when two media outlets published leaked documents that showed the federal government was actively monitoring phone calls and computer records of many Americans.

In the secret Foreign Intelligence Surveillance Court, the government doesn’t need to establish probable cause to get a warrant or court order, and it has a lower burden of proof than usually required by the Fourth Amendment.

The Fourth Amendment protects people from unreasonable search and seizure, and it says probable cause is needed by investigators.

During a tense Friday, as President Obama defended the actions, court papers were quietly filed about a possible Fourth Amendment violation involving government snooping.

The Electronic Frontier Foundation is suing the Justice Department under the Freedom of Information Act, based on a request made last year by Senator Ron Wyden of Oregon about that specific Fourth Amendment violation.

Wyden is regularly briefed about the activities of the NSA and FISC, and he asked the Director of National Intelligence (DNI) last year to release some information about the Patriot Act and the Fourth Amendment—most probably because he knew it existed and he couldn’t talk about it directly.

Related Link: Letter from the Director of National Intelligence to Wyden

A letter to Wyden from Kathleen Turner, the director of legal affairs for the DNI, confirmed that on at least one occasion, FISC found that an information request from the NSA wasn’t reasonable under the Fourth Amendment.

Turner also said, “I believe that the government’s implementation of Section 702 of FISA [the Foreign Intelligence Surveillance Act] has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.”

She also said that no time did the FISC find “intentional violations of law,” and the court found the NSA activities as reasonable and consistent with the Fourth Amendment.

The EFF lawsuit, part of which the Justice Department had to respond to by Friday, asks for the government to declassify that FISC decision that found at least one spy operation violated the Fourth Amendment.

Related Link: Read the EFF lawsuit

In early documents filed in the case, it was revealed that there was an 86-page FISC opinion from October 2011 that says some NSA activity was unconstitutional.

The current impasse is that FISC, the Justice Department, and the U.S. Court in the District of Columbia need to agree on who has the final power to release that 86-page opinion—if a decision were made to release it.

Indeed, on Friday, the Justice Department filed a motion in court, claiming FISC didn’t have jurisdiction to release the decision, and the decision was “properly classified” and should remain under seal.

The Justice Department’s arguments include claims that the decision could only be fully understood in its unedited form, which would raise national security concerns. It also argues against claims by the EFF and others that the government was posing a “Catch-22” situation by presenting a confusing situation about who has jurisdiction in the case.

“The fact that [the EFF] lacks a legal right to obtain the document it seeks does not imply a ‘Catch-22,’” the department said.

In a statement after the filing, the EFF didn’t agree with the Justice Department’s position.

“Frankly, it’s difficult to understand what DOJ is saying. The government seems to have a knee-jerk inclination towards secrecy, one that often—as in this case—simply defies logic,” the group said.

For now, the case remains in the hands of the presiding judge of FISC, Reggie Walton. The EFF hopes to get an opinion from Walton that FISC can consent to release its own decision about the Fourth Amendment. The case then probably heads back to Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia.

The fact that Walton even asked for the Justice Department to file a motion surprised observers in late May, and that was before the news broke about the extent of the government’s surveillance program.

The FISC judges almost always approve requests from the Justice Department and the NSA to collect private information as part of investigative activity.

In April, the Justice Department asked FISC for permission in 2012 to collect data in 1,788 applications. The department withdrew one request and the court approved all the other requests. About 212 of those requests were for business records that included electronic surveillance.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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