The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.Why is that particular decision so important? Because it takes a very narrow exception in the law, and blows it wide open—in secret—to apply vast powers to the NSA for "wholesale data collection" in the supposed pursuit of terrorists. That allows for the massive collection disclosed by whistleblower Edward Snowden, both foreign and domestic. The expansion into domestic surveillance is also included in the court's decisions in other national security concerns. Lichtblau details a case in which intelligence officials seized an email attachment sent withint the United States because they thought that maybe the attachment included a schematic that might have been connected to Iran's nuclear program. That collection, of a domestic person's email sent within the country, should have required a warrant. But the court used "a little-noticed provision in a 2008 law, expanding the definition of 'foreign intelligence' to include 'weapons of mass destruction. [...]'" Foreign intelligence has also now been expanded, apparently, to domestic intelligence. Secretly.
The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said. [...]
“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
The secrecy and lack of transparency and accountability are huge problems. But those problems might be somewhat mitigated if the FISA court worked like any other court in the United States, with an adversary. But there is no mechanism in this secret court for someone to argue against the government. There's a "Court of Review" to hear challenges and appeals, but that almost never happens. How could it, when the decisions are kept secret? It's not even clear whether the companies that the court is ordering to turn over mountains of data can even appear before the court in most circumstances.
This "parallel Supreme Court" has all the power of the highest court of the land, and more because there is no check whatsoever on the court. The members of the court are appointed by Chief Justice John Roberts, and currently all but one of them are Republican. There is no confirmation process for these judges, no advice and consent from anyone. It is operating in almost total secrecy. It is operating with no accountability. And its decisions are all classified.
If we're going to really have that debate President Obama says he wants about the balance between security and liberty, we need a real starting point. That start should be a declassification of the court's decisions, and congressional hearings and oversight of the court.