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Yesterday I posted a diary Former FISA Judge Breaks Ranks.

It reported on the testimony by Judge James Robertson, a former FISC judge. The discussion of the matter was extensive. I have been following this issue very closely for several weeks now and I find that I am becoming more confused about what is really going on. I am speaking specifically about the 2008 amendments to the FISA Act and when and how the practices of the FISC court have been implemented and modified.

I am fairly familiar with following law and government policy, but I am not an attorney. Yesterday I read this Wiki summary of the 2008 legislation.

Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008

Following 9/11 and the passage of the Patriot Act the NSA under the Bush administration began to engage in data collection activities relating to suspected terrorists with links to American citizens without obtaining warrants from the FISC. When this was eventually revealed by the media there was general agreement that such practices were illegal under the terms of FISA as it then stood in law. The amendments passed in 2008 were supposedly for the purposes of giving the government the necessary authority to conduct such individual investigations for a limited time before obtaining a warrant. At least that appears to be the way they were presented in the debates on the legislation.

My reading of the above Wiki summary is that the provisions of the amendments seem to focus entirely on individual investigations. However, in Judge Robertson's testimony and in several other discussions that have recently appeared in the media there is a recurring claim that the the role of FISC has expanded into the making of secret policy and secret law. This raises a number of important questions.

How is the court functioning at this point? So far all of the orders and rulings that it has produced remain classified. We really don't have any specifics about the nature of the involvement in law and policy that goes beyond individual investigations.

Does the FISA law as amended provide adequate legal authority for such an expansion of the courts role? It would be helpful if some of the attorneys active on Daily Kos could address this issue. I don't know if it can be answered definitively with the information that is publicly available, but it is of critical importance.

How have the practices of FISA and the activities of the NSA changed since the Obama administration took office in January 2009? Bush signed the amendments into law in the final months of his presidency. Judge Robertson seems to be making references to changes in practices that began to occur in 2010. I find the notion that everything about FISA and NSA that exist today was established by the Bush administration to be decidedly implausible.

Even if a government is being operated within the limits of the authority grated by law, that does not provide assurance that all of its activities are effective or desirable. The law has to change with altered circumstances. The difficulty here is that we are engaging in debates on a matter that none of us have much information about because of the secrecy in which it is cloaked. There is a fundamental difference between protecting the confidentiality of the details of individual investigations and informing the citizens of a democracy about the general nature of the policies and practices being conducted by the people who are governing in their name. They must be held accountable to the voters who put them there.  

UPDATE: 9:40 This diary posted a month ago by Armando:

The NSA revelations: Are the programs legal?

provides a very detailed exploration of this issue by an attorney who I have usually found to be professionally competent. His analysis confirms my suspicions that the Obama administration and the FISC have together embarked on programs that exceed the limits of the authority granted to them under the law.


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