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Since we began began publishing stories about the NSA's massive domestic spying apparatus, various NSA defenders – beginning with President Obama - have sought to assure the public that this is all done under robust judicial oversight. "When it comes to telephone calls, nobody is listening to your telephone calls," he proclaimed on June 7 when responding to our story about the bulk collection of telephone records, adding that the program is "fully overseen" by "the Fisa court, a court specially put together to evaluate classified programs to make sure that the executive branch, or government generally, is not abusing them". Obama told Charlie Rose last night:"What I can say unequivocally is that if you are a US person, the NSA cannot listen to your telephone calls … by law and by rule, and unless they … go to a court, and obtain a warrant, and seek probable cause, the same way it's always been, the same way when we were growing up and we were watching movies, you want to go set up a wiretap, you got to go to a judge, show probable cause."The GOP chairman of the House Intelligence Committee, Mike Rogers, told CNN that the NSA "is not listening to Americans' phone calls. If it did, it is illegal. It is breaking the law." Talking points issued by the House GOP in defense of the NSA claimed that surveillance law only "allows the Government to acquire foreign intelligence information concerning non-U.S.-persons (foreign, non-Americans) located outside the United States."

The decisions about who has their emails and telephone calls intercepted by the NSA is made by the NSA itself, not by the Fisa court, except where the NSA itself concludes the person is a US citizen and/or the communication is exclusively domestic. But even in such cases, the NSA often ends up intercepting those communications of Americans without individualized warrants, and all of this is left to the discretion of the NSA analysts with no real judicial oversight.

The NSA's media defenders have similarly stressed that the NSA's eavesdropping and internet snooping requires warrants when it involves Americans. The Washington Post's Charles Lane told his readers: "the government needs a court-issued warrant, based on probable cause, to listen in on phone calls." The Post's David Ignatius told Post readers that NSA internet surveillance "is overseen by judges who sit on the Foreign Intelligence Surveillance Court" and is "lawful and controlled". Tom Friedman told New York Times readers that before NSA analysts can invade the content of calls and emails, they "have to go to a judge to get a warrant to actually look at the content under guidelines set by Congress."This has become the most common theme for those defending NSA surveillance. But these claim are highly misleading, and in some cases outright false.

Director of National Intelligence James Clapper has won the infamous Rosemary Award for worst open government performance in 2013, according to the citation published today by the National Security Archive at www.nsarchive.org. Despite heavy competition, Clapper's "No, sir" lie to Senator Ron Wyden's question: "Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" sealed his receipt of the dubious achievement award, which cites the vastly excessive secrecy of the entire U.S. surveillance establishment. The Rosemary Award citation leads with what Clapper later called the "least untruthful" answer possible to congressional questions about the secret bulk collection of Americans' phone call data. It further cites other Clapper claims later proved false, such as his 2012 statement that "we don't hold data on U.S. citizens." But the Award also recognizes Clapper's fellow secrecy fetishists and enablers, including:

Gen. Keith Alexander, director of the NSA, for multiple Rose Mary Woods-type stretches, such as (1) claiming that the secret bulk collection prevented 54 terrorist plots against the U.S. when the actual number, according to the congressionally-established Privacy and Civil Liberties Oversight Board (PCLOB) investigation (pp. 145-153), is zero; (2) his 2009 declaration to the wiretap court that multiple NSA violations of the court's orders arose from differences over "terminology," an explanation which the chief judge said "strains credulity;" and (3) public statements by the NSA about its programs that had to be taken down from its website for inaccuracies (see Documents 78, 85, 87 in The Snowden Affair), along with public statements by other top NSA officials now known to be untrue (see "Remarks of Rajesh De," NSA General Counsel, Document 53 in The Snowden Affair).

Robert Mueller, former FBI director, for suggesting (as have Gen. Alexander and many others) that the secret bulk collection program might have been able to prevent the 9/11 attacks, when the 9/11 Commission found explicitly the problem was not lack of data points, but failing to connect the many dots the intelligence community already had about the would-be hijackers living in San Diego. The National Security Division lawyers at the Justice Department, for misleading their own Solicitor General (Donald Verrilli) who then misled (inadvertently) the U.S. Supreme Court over whether Justice let defendants know that bulk collection had contributed to their prosecutions. The same National Security Division lawyers who swore under oath in the Electronic Frontier Foundation's Freedom of Information Act lawsuit for a key wiretap court opinion that the entire text of the opinion was appropriately classified Top Secret/Sensitive Compartmented Information (release of which would cause "exceptionally grave damage" to U.S. national security). Only after the Edward Snowden leaks and the embarrassed governmental declassification of the opinion did we find that one key part of the opinion's text simply reproduced the actual language of the 4th Amendment to the U.S. Constitution, and the only "grave damage" was to the government's false claims.

A recent article written by this writer for Global Research posted last Saturday – “The Benghazi Scandal Is Obama’s Watergate But Worse” – was written in an effort to seek and uncover the truth. Accurate reporting on major world events is a challenge in today’s world where propaganda and disinformation are mainstream media norms and where virtually all major players in American politics simply lie through their teeth every time they open their mouths in constant effort to look good and cover up the truth. The American public knows this pathetic and sobering fact that deception has come to rule in the world of both politics and the media. People today neither believe their newscasters nor their political leaders. That is why examining the content of the tidal wave of assertions and opinions spewing forth from politicians and pundits in the aftermath of the latest Benghazi revelations must be taken with a grain of salt. Again, truth in today’s world is hard to come by. But as an investigative reporter, presenting a brief overview of recent comments and statements for any informed citizen to process and digest seems a worthwhile and important enterprise.

A timeline of recently unfolding events: On 10/12/12 exactly one month after the Benghazi incident, the legal conservative group Judicial Watch filed a Freedom of Information Act request seeking documents related to the Benghazi attack on September 11th, 2012 that killed the US Ambassador to Libya Christopher Stevens and three other Americans. Obama, who had campaigned on a promise of transparency in the criminal wake of the Bush regime, has proven to be anything but open and transparent. Having to sue the US government for access to the records, on April 18th, 2014, a full year and a half later, the Obama administration’s stonewalling ultimately failed and Judicial Watch successfully got hold of 41 State Department Benghazi related documents. Emails between high level White House officials discussing damage control strategies in the immediate aftermath of the Benghazi assault were released last week. Jubilant Republicans are now calling one of those emails their “smoking gun,” believing it is so incriminating that it will do in their would-be opponent Hillary Clinton from potentially competing in the 2016 presidential election.

The newly declassified email written by Obama’s then Deputy Strategic Communications Adviser Ben Rhodes specifically directed then UN Ambassador Susan Rice in preparation for her Sunday morning talk show appearances on September 16th, 2012 to explain the administration’s take on what it knew of the Benghazi murders. Rhodes advised Rice to attribute the Benghazi uprising as “rooted in an Internet video, and not a failure of policy,” pushing talking points designed to bolster Obama’s presidential image as a cool-as-a-cucumber-under-fire kind of wise and benevolent leader and statesman. The major emphasis of the email instructed Rice to blame the bogus anti-Moslem video as inciting a spontaneous protest like in other countries in the region that apparently grew violently out of control, of course all the while knowing that that was a boldface lie. This crucial piece of evidence proves that President Obama and Secretary of State Hillary Clinton both knew that the video did not cause the attack but that they chose to willfully deceive the American public in order to protect their own political careers and hence was born the infamously never ending Benghazi cover-up. Obama and Hillary withheld this damning email evidence even from the House Oversight Committee led by Congressman Darrel Issa (R-CA) requesting all documents pertaining to Benghazi more than a year ago. With the presidential election less than two months away at the time of the attack, Obama and Hillary were determined at all cost to keep hidden from Americans the real truth of criminal Benghazi activity they were guilty of engaging in during the months leading up to the attack. Last Thursday an angry Issa subpoenaed current Secretary of State John Kerry to appear before the committee on May 21st to further explain why those critical State Department records recently given to Judicial Watch were not among the 3200 documents originally handed over to his committee well over a year ago.

​​​​​​​​​​​​PRIVACY AND CIVIL LIBERTIES OVERSIGHT BOARD

PCLOB ISSUES REPORTReport on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court

On Thursday, Attorney-General George Brandis introduced a new national security bill into the Senate. This is the fifth tranche of national security legislation to be introduced into parliament since July 2014.

This bill includes a host of new measures designed to address the evolving threat posed by terrorism. These include: a new offence of advocacy of genocide; amendments to the control order regime, so it applies to persons 14 years and older, and new measures to monitor controlees; and clarification of the basis for issuing a preventative detention order. But the bill’s most concerning aspect is the proposal to expand the secrecy provisions available to courts in control order proceedings. Keeping national security information secret in court Since 2004, legislation has been in place to deal with information that is likely to prejudice national security in federal court proceedings. This legislation created a special closed hearing procedure to determine whether national security information could be disclosed in court and, if so, in what form. This process regulates disclosure between the parties – that is, who gets to see what.

The bill expands this by creating special provisions that allow the court to consider sensitive material that the controlee and legal representative have not seen in proceedings to impose, confirm or vary a control order. It provides that a court can consider all of the information: contained in an original source document in control order proceedings, even where the controlee and their legal representative have been provided with only a redacted or summarised form of the document; contained in an original source document in control order proceedings, even where the controlee and their legal representative have not been provided with any information contained in the original source document; and provided by a witness, even where the information provided by the witness is not disclosed to the controlee or their legal representative. The bill’s effect is to allow secret evidence into control order proceedings.

In a seminal decision updating and consolidating its previous jurisprudence on surveillance, the Grand Chamber of the European Court of Human Rights took a sideways swing at mass surveillance programs last week, reiterating the centrality of “reasonable suspicion” to the authorization process and the need to ensure interception warrants are targeted to an individual or premises. The decision in Zakharov v. Russia — coming on the heels of the European Court of Justice’s strongly-worded condemnation in Schrems of interception systems that provide States with “generalised access” to the content of communications — is another blow to governments across Europe and the United States that continue to argue for the legitimacy and lawfulness of bulk collection programs. It also provoked the ire of the Russian government, prompting an immediate legislative move to give the Russian constitution precedence over Strasbourg judgments. The Grand Chamber’s judgment in Zakharov is especially notable because its subject matter — the Russian SORM system of interception, which includes the installation of equipment on telecommunications networks that subsequently enables the State direct access to the communications transiting through those networks — is similar in many ways to the interception systems currently enjoying public and judicial scrutiny in the United States, France, and the United Kingdom. Zakharov also provides a timely opportunity to compare the differences between UK and Russian law: Namely, Russian law requires prior independent authorization of interception measures, whereas neither the proposed UK law nor the existing legislative framework do.

The decision is lengthy and comprises a useful restatement and harmonization of the Court’s approach to standing (which it calls “victim status”) in surveillance cases, which is markedly different from that taken by the US Supreme Court. (Indeed, Judge Dedov’s separate but concurring opinion notes the contrast with Clapper v. Amnesty International.) It also addresses at length issues of supervision and oversight, as well as the role played by notification in ensuring the effectiveness of remedies. (Marko Milanovic discusses many of these issues here.) For the purpose of the ongoing debate around the legitimacy of bulk surveillance regimes under international human rights law, however, three particular conclusions of the Court are critical.

The Court took issue with legislation permitting the interception of communications for broad national, military, or economic security purposes (as well as for “ecological security” in the Russian case), absent any indication of the particular circumstances under which an individual’s communications may be intercepted. It said that such broadly worded statutes confer an “almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance” (para. 248). Such discretion cannot be unbounded. It can be limited through the requirement for prior judicial authorization of interception measures (para. 249). Non-judicial authorities may also be competent to authorize interception, provided they are sufficiently independent from the executive (para. 258). What is important, the Court said, is that the entity authorizing interception must be “capable of verifying the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” (para. 260). This finding clearly constitutes a significant threshold which a number of existing and pending European surveillance laws would not meet. For example, the existence of individualized reasonable suspicion runs contrary to the premise of signals intelligence programs where communications are intercepted in bulk; by definition, those programs collect information without any consideration of individualized suspicion. Yet the Court was clearly articulating the principle with national security-driven surveillance in mind, and with the knowledge that interception of communications in Russia is conducted by Russian intelligence on behalf of law enforcement agencies.

The leader of the secret court that is supposed to provide critical oversight of the government’s vast spying programs said that its ability to do so is limited and that it must trust the government to report when it improperly spies on Americans. The chief judge of the Foreign Intelligence Surveillance Court said the court lacks the tools to independently verify how often the government’s surveillance breaks the court’s rules that aim to protect Americans’ privacy. Without taking drastic steps, it also cannot check the veracity of the government’s assertions that the violations its staff members report are unintentional mistakes.

“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” its chief, U.S. District Judge Reggie B. Walton, said in a written statement to The Washington Post. “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.” Walton’s comments came in response to internal government records obtained by The Post showing that National Security Agency staff members in Washington overstepped their authority on spy programs thousands of times per year. The records also show that the number of violations has been on the rise.

The court’s description of its practical limitations contrasts with repeated assurances from the Obama administration and intelligence agency leaders that the court provides central checks and balances on the government’s broad spying efforts. They have said that Americans should feel comfortable that the secret intelligence court provides robust oversight of government surveillance and protects their privacy from rogue intrusions.President Obama and other government leaders have emphasized the court’s oversight role in the wake of revelations this year that the government is vacuuming up “metadata” on Americans’ telephone and Internet communications. “We also have federal judges that we’ve put in place who are not subject to political pressure,” Obama said at a news conference in June. “They’ve got lifetime tenure as federal judges, and they’re empowered to look over our shoulder at the executive branch to make sure that these programs aren’t being abused.”

The National Security Agency on Christmas Eve day released twelve years of internal oversight reports documenting abusive and improper practices by agency employees. The heavily redacted reports to the President’s Intelligence Oversight Board found that NSA employees repeatedly engaged in unauthorized surveillance of communications by American citizens, failed to follow legal guidelines regarding the retention of private information, and shared data with unauthorized recipients. While the NSA has come under public pressure for openness since high-profile revelations by whistleblower Edward Snowden, the release of the heavily redacted internal reports at 1:30PM on Christmas Eve demonstrates limits to the agency’s attempts to demonstrate transparency. Releasing bad news right before a holiday weekend, often called a “Christmas Eve surprise,”  is a common tactic for trying to minimize press coverage.

The reports, released in response to a Freedom of Information Act request submitted by the American Civil Liberties Union, offer few revelations, but contain accounts of internal behavior embarrassing to the agency. In one instance an NSA employee “searched her spouse’s personal telephone directory without his knowledge to obtain names and telephone numbers for targeting”, a practice which previous reports have indicated was common enough to warrant the name “LOVEINT”. Many of the reports appear to deal with instances of human error rather than malicious misuse of agency resources. Nonetheless, many of these errors are potentially serious, including entries suggesting that unminimized U.S. telephone numbers were mistakenly disseminated to unauthorized parties and that military personnel were given unauthorized access to raw traffic databases collected under the Foreign Intelligence Services Act.

There are also accounts of simple bumbling by NSA employees, including the apparently common mistake of targeting their own communications for surveillance. In one unintentionally amusing passage, an NSA analyst is said to have “targeted his personal cellphone,” because he “mistakenly thought it would be acceptable to [redacted].” Another common example is the practice of NSA analysts accidentally designating their own communications as being those of a foreign intelligence target.

This month, the United States District Court for the District of Columbia ruled that the Department of Homeland Security must make its plan to shut off the Internet and cellphone communications available to the American public. You, of course, may now be thinking: What plan?! Though President Barack Obama swiftly disapproved of ousted Egyptian President Hosni Mubarak turning off the Internet in his country (to quell widespread civil disobedience) in 2011, the US government has the authority to do the same sort of thing, under a plan that was devised during the George W. Bush administration. Many details of the government’s controversial “kill switch” authority have been classified, such as the conditions under which it can be implemented and how the switch can be used. But thanks to a Freedom of Information Act lawsuit filed by the Electronic Privacy Information Center (EPIC), DHS has to reveal those details by December 12 — or mount an appeal. (The smart betting is on an appeal, since DHS has fought to release this information so far.) Yet here’s what we do know about the government’s “kill switch” plan:

What are the constitutional problems? Civil liberties advocates argue that kill switches violate the First Amendment and pose a problem because they aren’t subject to rigorous judicial and congressional oversight. “There is no court in the loop at all, at any stage in the SOP 303 process,” according to the Center for Democracy and Technology. ”The executive branch, untethered by the checks and balances of court oversight, clear instruction from Congress, or transparency to the public, is free to act as it will and in secret.” David Jacobs of EPIC says, “Cutting off communications imposes a prior restraint on speech, so the First Amendment imposes the strictest of limitations…We don’t know how DHS thinks [the kill switch] is consistent with the First Amendment.” He adds, “Such a policy, unbounded by clear rules and oversight, just invites abuse.”

For all their indignation last summer, when the scope of the United States’ mass data collection began to be made public, the French are hardly innocents in the realm of electronic surveillance. Within days of the reports about the National Security Agency’s activities, it was revealed that French intelligence services operated a similar system, with similarly minimal oversight.

And last week, with little public debate, the legislature approved a law that critics feared would markedly expand electronic surveillance of French residents and businesses. The provision, quietly passed as part of a routine military spending bill, defines the conditions under which intelligence agencies may gain access to or record telephone conversations, emails, Internet activity, personal location data and other electronic communications.

The law provides for no judicial oversight and allows electronic surveillance for a broad range of purposes, including “national security,” the protection of France’s “scientific and economic potential” and prevention of “terrorism” or “criminality.” In an unusual alliance, Internet and corporate groups, human rights organizations and a small number of lawmakers have opposed the law as a threat to business or an encroachment on individual rights. The government argues that the law, which does not take effect until 2015, does little to expand intelligence powers. Rather, officials say, those powers have been in place for years, and the law creates rules where there had been none, notably with regard to real-time location tracking.

UK's High Court found the rushed Data Retention and Investigatory Powers Act (DRIPA) to be illegal under the European Convention on Human Rights and EU Charter of Fundamental Rights, both of which require respect for private and family life, as well as protection of personal data in the case of the latter. DRIPA was challenged by two members of Parliament (MPs), Labor's Tom Watson and the Conservative David Davis, who argued that the surveillance of communications wasn't limited to serious crimes, that individual notices for data collection were kept secret, and that no provision existed to protect those who need professional confidentiality, such as lawyers and journalists. DRIPA was pushed through in three days last year after the European Court of Justice ruled that the EU data retention powers were disproportionate, which invalidated the previous data retention law in the UK. The UK High Court also ruled that sections 1 and 2 of DRIPA were unlawful based on the fact that they fail to provide precise policies to ensure that data is only accessed for the purpose of investigating serious crimes. Another major point against DRIPA was that it didn't require judicial approval, which could limit access to only the data that is strictly necessary for investigations.

DRIPA passed in only three days, but the Court allowed it to continue for another nine months, to give the UK government enough time to draft new legislation. Although this almost doubles the time in which this law will exist, it might be better in the long term, as it gives the members of Parliament enough time to debate its successor, without having to rush yet another law fearing that the government's surveillance powers will expire. This court ruling arrived at the right time, as the UK government is currently preparing the draft for the Investigative Powers Bill (also called Snooper's Charter by many), which further expands the government's surveillance powers and may even request encryption backdoors. It also joins other recent reviews of the government's surveillance laws that called for much stricter oversight done by judges rather than the government's own members. "Campaigners, MPs across the political spectrum, the Government's own reviewer of terrorism legislation are all calling for judicial oversight and clearer safeguards," said James Welch, Legal Director for Liberty, a human rights organization.

Scrutiny of American military bases in Britain could be increased dramatically for the first time in more than 60 years under cross-party proposals provoked by evidence that the installations are being used for drone strikes and mass spying activities. Draft proposals tabled by peers from all three major parties demand that the Government overhaul the “outdated” rules under which the Pentagon’s network of UK outposts operate following claims of British complicity in US drone missions in the Middle East and eavesdropping on European allies.

The revelations have fuelled concern in Parliament that British oversight of the bases, which operate under the 1951 Status of Forces Agreement, is outmoded and in urgent need of drastic revision because the legislation was drawn up long before technology such as drones or mass surveillance

Three senior peers from the Conservatives, Labour and the Liberal Democrats - along with a crossbencher - have tabled amendments to defence legislation currently going through the House of Lords demanding that the Government considers the introduction of measures including a new “scrutiny group” for each US base to ensure all activities carried out comply with British law.Under current arrangements, each US base is nominally under the command of a British officer but critics say meaningful oversight is impossible.The proposed scrutiny panels would include a “member holding high judicial office” and an independent scrutineer “with expertise in the particular technology used and services carried out by the visiting forces”.

Chilling legal memo from Obama DOJ justifies assassination of US citizens

The United Nations’ top official for counter-terrorism and human rights (known as the “Special Rapporteur”) issued a formal report to the U.N. General Assembly today that condemns mass electronic surveillance as a clear violation of core privacy rights guaranteed by multiple treaties and conventions. “The hard truth is that the use of mass surveillance technology effectively does away with the right to privacy of communications on the Internet altogether,” the report concluded. Central to the Rapporteur’s findings is the distinction between “targeted surveillance” — which “depend[s] upon the existence of prior suspicion of the targeted individual or organization” — and “mass surveillance,” whereby “states with high levels of Internet penetration can [] gain access to the telephone and e-mail content of an effectively unlimited number of users and maintain an overview of Internet activity associated with particular websites.” In a system of “mass surveillance,” the report explained, “all of this is possible without any prior suspicion related to a specific individual or organization. The communications of literally every Internet user are potentially open for inspection by intelligence and law enforcement agencies in the States concerned.”

Mass surveillance thus “amounts to a systematic interference with the right to respect for the privacy of communications,” it declared. As a result, “it is incompatible with existing concepts of privacy for States to collect all communications or metadata all the time indiscriminately.” In concluding that mass surveillance impinges core privacy rights, the report was primarily focused on the International Covenant on Civil and Political Rights, a treaty enacted by the General Assembly in 1966, to which all of the members of the “Five Eyes” alliance are signatories. The U.S. ratified the treaty in 1992, albeit with various reservations that allowed for the continuation of the death penalty and which rendered its domestic law supreme. With the exception of the U.S.’s Persian Gulf allies (Saudi Arabia, UAE and Qatar), virtually every major country has signed the treaty. Article 17 of the Covenant guarantees the right of privacy, the defining protection of which, the report explained, is “that individuals have the right to share information and ideas with one another without interference by the State, secure in the knowledge that their communication will reach and be read by the intended recipients alone.”

The report’s key conclusion is that this core right is impinged by mass surveillance programs: “Bulk access technology is indiscriminately corrosive of online privacy and impinges on the very essence of the right guaranteed by article 17. In the absence of a formal derogation from States’ obligations under the Covenant, these programs pose a direct and ongoing challenge to an established norm of international law.” The report recognized that protecting citizens from terrorism attacks is a vital duty of every state, and that the right of privacy is not absolute, as it can be compromised when doing so is “necessary” to serve “compelling” purposes. It noted: “There may be a compelling counter-terrorism justification for the radical re-evaluation of Internet privacy rights that these practices necessitate. ” But the report was adamant that no such justifications have ever been demonstrated by any member state using mass surveillance: “The States engaging in mass surveillance have so far failed to provide a detailed and evidence-based public justification for its necessity, and almost no States have enacted explicit domestic legislation to authorize its use.”

"U.S. Magistrate Judge Stephen Smith estimates in a new paper (PDF) that 30,000 secret surveillance orders are approved each year in U.S. courts. 'Though such orders have judicial oversight, few emerge from any sort of adversarial proceeding and many are never unsealed at all.' Smith writes, 'To put this figure in context, magistrate judges in one year generated a volume of secret electronic surveillance cases more than thirty times the annual number of FISA cases; in fact, this volume of ECPA cases is greater than the combined yearly total of all antitrust, employment discrimination, environmental, copyright, patent, trademark, and securities cases filed in federal court.' He also adds a warning: 'Lack of transparency in judicial proceedings has long been recognized as a threat to the rule of law and roundly condemned in ringing phrases by many Supreme Court opinions.'"

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. 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 special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said. That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

The Obama administration is preparing to unveil a legislative proposal for a far-reaching overhaul of the National Security Agency’s once-secret bulk phone records program in a way that — if approved by Congress — would end the aspect that has most alarmed privacy advocates since its existence was leaked last year, according to senior administration officials.Under the proposal, they said, the N.S.A. would end its systematic collection of data about Americans’ calling habits. The bulk records would stay in the hands of phone companies, which would not be required to retain the data for any longer than they normally would. And the N.S.A. could obtain specific records only with permission from a judge, using a new kind of court order. In a speech in January, President Obama said he wanted to get the N.S.A. out of the business of collecting call records in bulk while preserving the program’s abilities. He acknowledged, however, that there was no easy way to do so, and had instructed Justice Department and intelligence officials to come up with a plan by March 28 — Friday — when the current court order authorizing the program expires.

As part of the proposal, the administration has decided to ask the Foreign Intelligence Surveillance Court to renew the program as it exists for at least one more 90-day cycle, senior administration officials said. But under the plan the administration has developed and now advocates, the officials said, it would later undergo major changes. The new type of surveillance court orders envisioned by the administration would require phone companies to swiftly provide records in a technologically compatible data format, including making available, on a continuing basis, data about any new calls placed or received after the order is received, the officials said. They would also allow the government to swiftly seek related records for callers up to two phone calls, or “hops,” removed from the number that has come under suspicion, even if those callers are customers of other companies.

The N.S.A. now retains the phone data for five years. But the administration considered and rejected imposing a mandate on phone companies that they hold on to their customers’ calling records for a period longer than the 18 months that federal regulations already generally require — a burden that the companies had resisted shouldering and that was seen as a major obstacle to keeping the data in their hands. A senior administration official said that intelligence agencies had concluded that the operational impact of that change would be small because older data is less important.The N.S.A. uses the once-secret call records program — sometimes known as the 215 program, after Section 215 of the Patriot Act — to analyze links between callers in an effort to identify hidden terrorist associates, if they exist. It was part of the secret surveillance program that President George W. Bush unilaterally put in place after the terrorist attacks of Sept. 11, 2001, outside of any legal framework or court oversight.

Does the National Security Agency (NSA) have the authority to collect and keep all encrypted Internet traffic for as long as is necessary to decrypt that traffic? That was a question first raised in June 2013, after the minimization procedures governing telephone and Internet records collected under Section 702 of the Foreign Intelligence Surveillance Act were disclosed by Edward Snowden. The issue quickly receded into the background, however, as the world struggled to keep up with the deluge of surveillance disclosures. The Intelligence Authorization Act of 2015, which passed Congress this last December, should bring the question back to the fore. It established retention guidelines for communications collected under Executive Order 12333 and included an exception that allows NSA to keep ‘incidentally’ collected encrypted communications for an indefinite period of time. This creates a massive loophole in the guidelines. NSA’s retention of encrypted communications deserves further consideration today, now that these retention guidelines have been written into law. It has become increasingly clear over the last year that surveillance reform will be driven by technological change—specifically by the growing use of encryption technologies. Therefore, any legislation touching on encryption should receive close scrutiny.

Section 309 of the intel authorization bill describes “procedures for the retention of incidentally acquired communications.” It establishes retention guidelines for surveillance programs that are “reasonably anticipated to result in the acquisition of [telephone or electronic communications] to or from a United States person.” Communications to or from a United States person are ‘incidentally’ collected because the U.S. person is not the actual target of the collection. Section 309 states that these incidentally collected communications must be deleted after five years unless they meet a number of exceptions. One of these exceptions is that “the communication is enciphered or reasonably believed to have a secret meaning.” This exception appears to be directly lifted from NSA’s minimization procedures for data collected under Section 702 of FISA, which were declassified in 2013. 

While Section 309 specifically applies to collection taking place under E.O. 12333, not FISA, several of the exceptions described in Section 309 closely match exceptions in the FISA minimization procedures. That includes the exception for “enciphered” communications. Those minimization procedures almost certainly served as a model for these retention guidelines and will likely shape how this new language is interpreted by the Executive Branch. Section 309 also asks the heads of each relevant member of the intelligence community to develop procedures to ensure compliance with new retention requirements. I expect those procedures to look a lot like the FISA minimization guidelines.

Using the broad powers granted under the USA PATRIOT Act, the FBI demanded that 4 librarians produce private information about library patrons’ reading habits, then used an endless gag order to force them to remain silent about the request for the rest of their lives under penalty of prison time.

The FBI was demanding that the library hand over private data on library patrons en masse “to protect against international terrorism.” The document that Mr. Christian was given was a so-called National Security Letter (NSL), a type of administrative subpoena for personal information — self-written by the FBI without any probable cause or judicial oversight.  The legal framework for these powerful NSLs was established by Section 505 of the USA PATRIOT Act in 2001. What’s more, Mr. Christian was placed under a perpetual gag order.  The NSL prohibited the recipient “from disclosing to any person that the F.B.I. has sought or obtained access to information or records under these provisions.”  The gag order was broad enough that it was a crime to discuss the matter to any other person — for life.  The USA PATRIOT Act allows for this suppression of speech, and issues a punishment of up to 5 years in prison for anyone caught violating the endless gag order.

The only reason we know about this case today is because Mr. Christian and 3 other library board members fought back in court.  

When Edward Snowden disclosed details of America’s huge surveillance program two years ago, many in Europe thought that the response would be increased transparency and stronger oversight of security services. European countries, however, are moving in the opposite direction. Instead of more public scrutiny, we are getting more snooping. Pushed to respond to the atrocious attacks in Paris and Copenhagen and by the threats posed by the Islamic State to Europe’s internal security, several countries are amending their counterterrorism legislation to grant more intrusive powers to security services, especially in terms of mass electronic surveillance.

Governments now argue that to guarantee our security we have to sacrifice some rights. This is a specious argument. By shifting from targeted to mass surveillance, governments risk undermining democracy while pretending to protect it.They are also betraying a long political and judicial tradition affording broad protection to privacy in Europe, where democratic legal systems have evolved to protect individuals from arbitrary interference by the state in their private and family life. The European Court of Human Rights has long upheld the principle that surveillance interferes with the right to privacy. Although the court accepts that the use of confidential information is essential in combating terrorist threats, it has held that the collection, use and storage of such information should be authorized only under exceptional and precise conditions, and must be accompanied by adequate legal safeguards and independent supervision. The court has consistently applied this principle for decades when it was called to judge the conduct of several European countries, which were combating domestic terrorist groups.

More recently, as new technologies have offered more avenues to increase surveillance and data collection, the court has reiterated its position in a number of leading cases against several countries, including France, Romania, Russia and Britain, condemned for having infringed the right to private and family life that in the interpretation of the court covers also “the physical and psychological integrity of a person.”