Wonkbook: The secret surveillance court is making secret surveillance laws

July 8, 2013

Welcome to Wonkbook, Ezra Klein and Evan Soltas's morning policy news primer. To subscribe by e-mail, click here. Send comments, criticism, or ideas to Wonkbook at Gmail dot com. To read more by Ezra and his team, go to Wonkblog.

(Photo by Charles Dharapak/AP)
(Photo by Charles Dharapak/AP)

The laws we live by aren't just the bills Congress passes and the president signs. It's what the courts decide those bills actually mean.

We're used to that. The Affordable Care Act, for instance, says that states that don't accept the Medicaid expansion lose all their Medicaid money. The Supreme Court decided that went too far. The law might still say that if you read the underlying bill, but it no longer means that. Now states can reject the Medicaid expansion without jeopardizing the rest of their Medicaid money -- and many are.

But here's the thing: When judges make the laws, Congress can always go back and remake the laws. The changes the court makes are public, and so is their reasoning. Both the voters and Congress know what the court has done, and can choose to revisit it.

Well, usually.

The Foreign Intelligence Surveillance Court (FISA court) that governs the national surveillance state is also remaking the law. But it's remaking the law in secret. The public has no opportunity to weigh in, and Congress can't really make changes, because few know what the court is deciding, and almost no one can discuss the decisions without endangering themselves.

One example: The Wall Street Journal reports that the FISA court quietly reinterpreted the language of the PATRIOT Act so the word "relevant" -- which governs the information the government can scoop up -- no longer means, well, "relevant." It means "yeah, sure, whatever you want."

The Journal quotes Mark Eckenwiler,who served as the Justice Department's primary authority on federal criminal surveillance law until December, saying, "'Relevant' has long been a broad standard, but the way the court is interpreting it, to mean, in effect, 'everything,' is new."

In the New York Times, Eric Lichtbau reports that this kind of ambition has become common on the FISA court. "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."

He quotes a former intelligence official who puts the situation very bluntly: “We’ve seen a growing body of law from the court."

Surveillance types make a distinction between secrecy of laws, secrecy of procedures and secrecy of operations. The expectation is that the laws that empower or limit the government's surveillance powers are always public. The programs built atop those laws are often secret. And the individual operations are almost always secret. As long as the public knows about and agreed to the law, the thinking goes, it's okay for the government to build a secret surveillance architecture atop it.

But the FISA court is, in effect, breaking the first link in that chain. The public no longer knows about the law itself, and most of Congress may not know, either. The courts have remade the law, but they've done so secretly, without public comment or review.

"The government is operating under rules different from the rules that are made public," says Elizabeth Goitein, co-director of the Brennan Center for Justice's Liberty and National Security Program.

These rules have been remade in a court where the government is the only witness, and there's no possibility for appeal, and all 11 judges were chosen by Chief Justice John Roberts, and 10 of the 11 judges were Republican appointees to the federal bench. This is not a court like any other court in the United States save for the secrecy. It's a court pretty much unlike any other in the United States.

When asked who watches over the National Security Agency's surveillance efforts, the administration says that the FISA courts do. Trite as it may be, that leads to the age-old question: Well, then who watches over the watchers?

Wonkbook's Number of the Day: 8 million. That's approximately the number of permanent residents who are eligible to become citizens.

Wonkbook's Quotation of the Day: "We're getting close to the point where the training wheels can come off," said J.P. Michael Feroli, chief U.S. economist at J.P. Morgan Chase. Feroli now expects the Fed to begin 'tapering' in September rather than in December.

Wonkblog's Graphs of the Day: Net federal investment is negative for the first time in a decade.

Wonkbook's Top 5 Stories: 1) new revelations about NSA spying court; 2) Larry Summers, Fed chair?; 3) ending health insurers; 4) Bush backs immigration reform; and 5) environmental regulations, coming through!

1) Top story: The court of darkness

In secret, court vastly broadens powers of NSA. "In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say. 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." Eric Lichtblau in The New York Times.

Secret court's wide definition of 'relevant' enabled vast spying. "This change—which specifically enabled the surveillance recently revealed by former NSA contractor Edward Snowden—was made by the secret Foreign Intelligence Surveillance Court, a group of judges responsible for making decisions about government surveillance in national-security cases. In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling." Jennifer Valentino-Devries and Siobhan Gorman in The Wall Street Journal.

@Pawelmorski: Amazing. The NSA reads all Egyptian email and they still can't say if there's been a coup.

Other nations are using NSA data. "Snowden told a German magazine that other Western governments use information from the same NSA phone and Internet intelligence programs that some of their leaders are now protesting. Or, as Snowden put it, NSA analysts are "in bed together with the Germans and most other Western states."" David Jackson in USA Today.

...ICMYI, from Ezra: "Chief justice of the United States is a pretty big job. You lead the Supreme Court conferences where cases are discussed and voted on. You preside over oral arguments. When in the majority, you decide who writes the opinion. You get a cool robe that you can decorate with awesome gold stripes. Oh, and one more thing: You have exclusive, unaccountable, lifetime power to shape the surveillance state. The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else." Ezra Klein in The Washington Post.

Privacy group asks Supreme Court to stop NSA. "A privacy rights group plans to file an emergency petition with the Supreme Court on Monday asking it to stop the National Security Agency’s domestic surveillance program that collects the telephone records of millions of Americans...The group, based in Washington, also said it was taking its case to the Supreme Court because it could not challenge the legality of the N.S.A. program at the secret court that approved it, the Foreign Intelligence Surveillance Court, known as the FISA court, and because lower federal courts did not have the authority to review the secret court’s orders." James Risen in The New York Times.

Why “we only spy on foreigners” doesn’t work any more for the NSA. "The Internet is forcing the world’s governments to rethink a fundamental premise of surveillance law: the distinction between foreign and domestic surveillance. That distinction makes less and less sense as the Internet becomes increasingly globalized...The Internet has obliterated the once-clear line between foreign and domestic surveillance. Hundreds of millions of foreigners use American services such as Gmail and Facebook. The NSA has argued that to preserve its capacity to spy on foreigners, it needs a free hand to tap into online services that are also used by millions of Americans." Timothy B. Lee in The Washington Post.

SINGER: The spying game. "The question is not what information a government, or business, gathers, but what they do with it. I would be outraged if there were evidence that – for example – the US government was using the private information that it scoops up to blackmail foreign politicians into serving US interests, or if such information were leaked to newspapers in an effort to smear critics of US policies. That would be a real scandal...If, however, nothing of that sort has happened, and if there are effective safeguards in place to ensure that it does not happen, then the remaining question is whether this huge data-gathering effort really does protect us against terrorism, and whether we are getting value for money from it." Peter Singer in Project Syndicate.

Music recommendations interlude: The Vietnams, "Oh Miss Deceiver."

Top op-eds

SUMMERS: Tax foreign profits. "The US should eliminate the distinction between repatriated and unrepatriated foreign corporate profits for US companies and tax all foreign income (after allowance for taxes paid to other governments) at a fixed rate well below the current US corporate rate of 35 per cent, perhaps about 15 per cent. A similar tax should be imposed retrospectively on accumulated profits held abroad." Larry Summers in The Financial Times.

DOUTHAT: A hidden consensus on health care. "The policy consensus, though, is that the status quo is actually the problem, and that it deserves to be threatened, undermined and replaced as expeditiously as possible. Wonks of the left and right disagree on what that replacement should look like. But they’re united in regarding employer-provided coverage as an unsustainable relic: a burden on businesses, a source of perverse incentives for the health care market and an obstacle to more efficient, affordable and universal coverage." Ross Douthat in The New York Times.

FLOURNOY: The smart-shopping way to cut defense spending. "There is a real risk the U.S. will cut defense in the wrong ways. Historically, almost all postwar drawdowns have resulted in a "hollow force"—that is, too much force structure and overhead with too little spending on readiness and modernization. America has tended to solve its budget problems on the back of the force rather than squeezing savings out of a highly inefficient defense enterprise. Such savings could be wrung, in part, from the way the Pentagon procures goods, services and weapons." Michele A. Flournoy in The Wall Street Journal.

FRANK: Austerity won't work if the roof is leaking. "[F]ears about growing public debt have caused wholesale cuts in American public investment. The Germans, of course, yield to no one in their distaste for indebtedness. But they also understand the distinction between consumption and investment. By borrowing, they’ve made investments whose future benefits will far outweigh repayment costs. There’s nothing foolhardy about that." Robert H. Frank in The New York Times.

KRUGMAN: Defining prosperity down. "Ask yourself the hard question: What, exactly, will bring us back to full employment?...[The private-sector-led] healing process won’t go very far if policy makers stomp on it, in particular by raising interest rates. That’s not an idle worry. A Fed chairman famously declared that his job was to take away the punch bowl just as the party was really warming up; unfortunately, history offers many examples of central bankers pulling away the punch bowl before the party even starts." Paul Krugman in The New York Times.

BLINDER: The economy needs more spending now. "On the proverbial list of top 10 reasons for poor economic policy, politics occupies about the first six places. But around seventh or eighth place there is a conceptual confusion that sounds pedantic but is highly consequential. I refer to the failure to distinguish between the short-run and long-run effects of particular policies, which are often starkly different. The most prominent recent example is the battle over reducing the federal budget deficit." Alan S. Blinder in The Wall Street Journal.

KONCZAL: Can libertarian populism save the Republican party? "I want to focus on a narrower question within this debate. Would an agenda focused on “libertarian populism” be the right way to bring economically disaffected whites back into the GOP’s fold? Both Ben Domenech of the Transom and Tim Carney of the Washington Examiner have made this case. But it’s an argument that has several major problems." Mike Konczal in The Washington Post.

Futuristic interlude: How driverless cars could reshape cities.

2) Larry Summers for Fed chair?

Larry Summers circles as Fed opening looms. "Mr. Summers, a former top economic adviser to Mr. Obama, is speaking, writing, consulting, advising, teaching and still in frequent contact with the president. And some of his friends say he is more than a little interested in the Fed job. Messrs. Obama and Summers explicitly discussed the possibility he could become Fed chairman in a private conversation at the end of 2010, as Mr. Summers was leaving his post as the director of the White House's National Economic Council, according to a person familiar with the matter." Damian Paletta in The Wall Street Journal.

Jobs strength keeps Fed 'taper' on track. "The jobs figures mean the Fed is likely to stay on the course Chairman Ben Bernanke plotted last month and begin to scale back its $85 billion-per-month bond-buying program later this year. He said if the economy continues to evolve as the Fed expects, it would continue to reduce purchases and wrap up the program by mid-2014. "We're getting close to the point where the training wheels can come off," said Michael Feroli, a J.P. Morgan Chase economist, who now predicts the Fed will begin cutting its bond buying at its September 17-18 policy meeting. Before Friday's jobs report he was predicting that would happen at the December meeting." Victoria McGrane in The Wall Street Journal.

Earnings in spotlight as Fed jolt fades. "Investors hoping that U.S. companies will come to the rescue are likely to be disappointed, according to analysts who have been trimming their expectations in recent weeks...Companies in the Standard & Poor's 500-stock index are expected to report a meager 0.7% rise in quarterly earnings from a year earlier, according to analyst forecasts complied by FactSet. That would be the smallest growth since the third quarter of 2012." Matt Jarzemsky in The Wall Street Journal.

Compensation packages decline, as CEO pay shifts from cash to stock. "Pay for the chief executives of Washington’s largest public companies declined in 2012 compared to the year before, as compensation increasingly shifted to favor stocks over cash. Among the 89 highest-paid chief executives, total compensation fell 4.52 percent in 2012. Median pay dipped 3 percent to $3.22 million from $3.32 million, according to a new survey conducted for Capital Business by Equilar, an executive compensation research firm. In some cases, the drop reflects the diminishing returns of local firms grappling with a pullback in government spending." Abha Bhattarai in The Washington Post.

Dodd-Frank executive pay rule still in limbo amid pushback from corporate America. "The provision required companies to disclose how much more their chief executives made than other employees. All the agency had to do was write a rule telling firms how to comply. Nearly three years later, the rule remains unfinished, with no sign of when it will be done...What the agency did not count on was the resistance mounted by big business. A lobbying campaign waged by business executives and the nation’s most prominent corporate associations undercut the momentum and effectively brought the agency’s work on the rule to a standstill, according to interviews with SEC insiders and others familiar with discussions about the requirement." Jerry Markon and Dina ElBoghdady in The Washington Post.

Detroit interlude: Canoeing the Rouge River.

3) Is this the end of health insurers?

Conservatives' agressive ad campaign seeks to cast doubt on health law. "In one of the largest campaigns of its kind, Americans for Prosperity, a conservative advocacy group financed in part by Charles and David Koch, will begin running television commercials this week asserting that the law will limit Americans’ health care choices...“How do I know my family is going to get the care they need?” asks a young mother of two who stars in a commercial, the first in a series that Americans for Prosperity plans to expand to as many as seven states. “Can I really trust the folks in Washington with my family’s health care?”" Jeremy W. Peters in The New York Times.

Clinton aide joins Obama on health care. "In an effort to put President Obama’s health care program back on track, the White House has recruited Chris Jennings, a respected veteran of the Clinton administration, to join the Obama team as a health policy coordinator and strategist, the White House said on Sunday night." Robert Pear in The New York Times.

Longread: Is this the end of health insurersSarah Kliff in The Washington Post.

Will doctors promote Obamacare? The American Medical Association president thinks so. "From women’s magazines to sports leagues, the Obama administration is asking lots of groups for help in promoting the Affordable Care Act this summer. Will doctors join that list? Arvis Hoven, the new president of the American Medical Association, told me, in an interview conducted for C-Span’s Newsmakers, that her group has been in talks with the Obama administration and will do “whatever we can in our power” to promote Obamacare." Sarah Kliff in The Washington Post.

Planned Parenthood, ACLU sue Wisconsin over abortion law. "Planned Parenthood Federation of America and the American Civil Liberties Union are suing Wisconsin to try to block a new law that would require abortion providers to have admitting privileges at local hospitals. The law, set to take effect Monday, was “rushed” through the legislative process last month, the groups said in a complaint filed Friday in federal court in Madison, Wis. The measure would force two of the state’s four abortion providers to shut down, according to the complaint." Christie Smythe in The Washington Post. 

Oh my interlude: "Nude images of luminaries like Yale alum George Bush and Wellesley alums Hillary Rodham Clinton and Diane Sawyer may still exist in dusty archives somewhere." (SFW, we promise.)

4) George W. Bush wants you to support immigration reform

Obama’s summertime push: Immigration and the economy. "On immigration, Obama is devising a new, more public strategy that will include events in states with large Latino populations, advisers say — part of an aggressive effort to pressure House Republicans who remain skeptical of proposed changes. The White House intends to rally GOP constituencies friendly to the cause, as well, including business and evangelical groups...Many in the White House see a Sept. 30 deadline to renew government funding as probably the last opportunity for Obama to scale back the deep domestic spending cuts known as sequestration before the 2014 midterm elections." Zachary A. Goldfarb in The Washington Post.

George W. Bush sees progress on immigration. "Former president George W. Bush says he thinks lawmakers have made progress tackling immigration reform. “I think it’s very important to fix a broken system, to treat people with respect, and have confidence in our capacity to assimilate people,” Bush said in an interview broadcast Sunday on ABC’s “This Week With George Stephanopoulos. “It’s a very difficult bill to pass because there’s a lot of moving parts. And the legislative process can be ugly. But it looks like they’re making some progress."" Sean Sullivan in The Washington Post.

Turning permanent residents into citizens. "As Congress debates whether to put 11 million illegal immigrants on the path to citizenship, a network of private foundations, nonprofits and businesses has launched a campaign to turn legal U.S. residents who haven't pursued citizenship into naturalized Americans. More than eight million permanent residents, or green-card holders, are eligible to become citizens, according to the federal government..."If even just half of those eligible for citizenship would naturalize, it could add billions of dollars to the economy in the next decade," said Matthew Denhart, an immigration fellow at the Bush center, referring to wage and skill gains associated with becoming a citizen that would swell buying power." Miriam Jordan in The Wall Street Journal.

PTSD interlude: What it is like to be haunted by your control of a military drone.

5) Here comes the environmental regulations

Obama administration preparing host of new environmental regs. "The Obama administration is looking forward to a host of new environmental regulations that go far beyond the president's plans to issue new standards for greenhouse gas emissions from new and existing power plants. The new regulations, previewed in the administration's spring regulatory roadmap released this week, cover everything from pollution runoff from military ships to landfill methane emissions, and in some cases will be issued long after called for under the law." Julian Hattem in The Hill.

Obama channels his inner Al Gore in climate change messaging shift. "Obama, in short, is now talking loudly and directly about the peril of climate change as he promotes an array of executive-level actions...For large swaths of Obama’s first term, warnings about the planetary risk and economic peril of climate change were the “B” message from the White House – at most." Ben Geman in The Hill.

Obama remarks offer hope to Keystone opponents. "White House officials cautioned that the president was still a long way from a decision on the pipeline, currently under review by the State Department, which has jurisdiction over infrastructure projects that cross national borders. Secretary of State John Kerry, a longtime champion of strong domestic and international action on climate change, has been studiously silent on the project." John M. Broder in The New York Times.

Reading material interlude: The best sentences Wonkblog read today.

Wonkblog Roundup

How the rise of Fox News helped Republican candidatesDan Hopkins.

Worried about a San Francisco-type plane crash? They almost never happen anymoreLydia DePillis.

Here’s all the stuff that supposedly costs us billions in ‘lost productivity’. Brad Plumer.

Yes, Kickstarter raises more money for artists than the NEA. Here’s why that’s not really surprisingKatherine Boyle.

Will doctors promote Obamacare? The American Medical Association president thinks soSarah Kliff.

Why “we only spy on foreigners” doesn’t work any more for the NSATimothy B. Lee.

Can libertarian populism save the Republican PartyMike Konczal.

Et Cetera

Longreads -- In rural Tennessee, a new way to help hungry children: A bus turned bread truck. Eli Saslow in The Washington Post. How to win in Washington. Mark Leibovich in The New York Times.

After ruling, states rush to enact new voting lawsMichael Cooper in The New York Times.

The harsh consequences of a gridlocked CongressJonathan Weisman in The New York Times.

Defense furloughs set to startLolita C. Baldor in The Washington Post.

Got tips, additions, or comments? E-mail me.

Wonkbook is produced with help from Michelle Williams.

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