Still, the government almost always gets much of what it wants from the court.
In 2012, the court received 1,789 requests for electronic surveillance, according to the annual report it files with the Senate. One was withdrawn. The rest were approved, sometimes after back-and-forth interactions in which judges required the government to tweak or scale back its plans. Significant opinions in recent years have been sent to congressional intelligence committee members but remain classified.
Now, outside critics, lawmakers and some with internal knowledge of the court are starting to push for an overhaul.
Wyden said the surveillance court has issued “pretty stunning rulings, rulings that I think are about as expansive as anything you can imagine.”
Wyden pointed to court orders authorizing collection of bulk phone data, which The Post reported had dated to 2006, as indicators of the court’s broad view of government powers. At issue is a provision of the Patriot Act, passed by Congress after the Sept. 11 attacks, which permitted the FBI to compel the production of “business records” deemed relevant to terrorism and espionage investigations and to share those with intelligence officials.
Those orders followed a turbulent time for the secret court. Some judges were outraged that they had not been aware of the Bush administration’s warrantless wiretapping operation, which was first reported by the New York Times in late 2005. One member of the panel, U.S. District Judge James Robertson, resigned in protest, confiding to colleagues that he was concerned the program may have been illegal and could have tainted the court’s work.
One person close to the court, speaking on the condition of anonymity to discuss the secretive body, said the newly revealed orders indicate a shift in which the court blesses the bulk collection of Americans’ communications data to make investigations easier rather than weighing the merits of violating the privacy of one person on a case-by-case basis. Before this change, the person said, “it was one warrant at a time.”
The court’s under-the-radar approach proved a particular challenge this spring to the Electronic Frontier Foundation when it sought to file its motion seeking release of the prior finding of the unlawful government surveillance. It turned out that the mere act of finding the court proved a steep hurdle.
Repeated calls to the court clerk from the foundation went unreturned, said David Sobel, an attorney for the group. The group wound up submitting the motion through a staffer at the Justice Department, whose officials were actively opposing the group’s efforts.
“We never had any direct contact with the court,” Sobel said, “and the other party in the proceeding was the gatekeeper.”
Chief Justice Roberts himself signaled some discomfort with the system during his 2005 confirmation hearings.
“I’ll be very candid,” he told senators. “When I first learned about the FISA court, I was surprised. It’s not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it’s subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That’s what we think of as a court.”