9,400 to Zero: For 6 Years, Spy Court Denied No Electronic Surveillance Applications

Terence P. Jeffrey | March 6, 2017 | 7:25pm EST
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E. Barrett Prettyman U.S. Courthouse in Washington, D.C. (Getty Images/Greg Kahn)
E. Barrett Prettyman U.S. Courthouse in Washington, D.C. (Getty Images/Greg Kahn)

(CNSNews.com) - In the last six years on record (2010-2015), the Foreign Intelligence Surveillance Court did not deny a single application out of the 9,400 the government submitted seeking authority “to conduct electronic surveillance for foreign intelligence purposes” under the terms of the Foreign Intelligence Surveillance Act, according to reports filed by the U.S. Justice Department.

The last time the court denied an electronic surveillance application under FISA was 2009. That year, the court denied one application outright and denied another in part.

The latest annual report from the Justice Department to Congress on the disposition of FISA requests was delivered on April 28, 2016. Signed by then-Assistant Attorney General Peter J. Kadzik, it covers calendar year 2015.

“[T]his report provides information regarding all applications made by the government during calendar year 2015 for authority to conduct electronic surveillance for foreign intelligence purposes under the Act,” Kadzik says in the first paragraph of the report.

This annual report—and those going back to 1996—are available at DOJ’s online Freedom of Information Act library.

Although the court denied none of the government’s applications for electronic surveillance under FISA from 2010 through 2015, the court did modify some of those it approved and the government withdrew some of those it submitted.

From 2010 through 2015, the government submitted a total of 9,400 applications to the Foreign Intelligence Surveillance Court seeking the authority to conduct electronic surveillance.

Of those 9400, the court approved 9,391 and the government withdrew 9. The court also modified 217 of those it approved.

It denied none.

In a July 29, 2013 letter to then-Senate Judiciary Chairman Patrick Leahy (D.-Vt.), Judge Reggie B. Walton, then the court’s presiding judge, explained why the court approved such a high rate of government applications to conduct electronic surveillance under FISA.

The administration and the court go through a consultation process that starts when the administration submits a “proposed application” to the court’s staff.

“[A] proposed application must be submitted by the government no later than seven days before the government seeks to have the matter entertained,” Walton wrote.

“Upon the court’s receipt of a proposed application for an order under FISA,” the judge said, “a member of the court’s legal staff reviews the application and evaluates whether it meets the legal requirements under the statute. As part of this evaluation, a court attorney will often have one or more telephone conversations with the government to seek additional information and/or raise concerns about the application.”

The court attorney “then prepares a written analysis of the application for the duty judge.”

“The judge typically makes a preliminary determination at that time about what course of action to take,” wrote Walton.

“A staff attorney will then relay the judge’s inclination to the government, and the government will typically proceed by providing additional information, or submitting a final application (sometimes with amendments, at the government’s election) for the court’s ruling…”

“In some cases,” wrote Walton, “the government may decide not to submit a final application, or to withdraw one that has been submitted, after learning that the judge does not intend to approve it.

“The annual statistics provided to Congress by the Attorney General pursuant to 50 USC §§ 1807 and 1862(b)—frequently cited in press reports as a suggestion that the court’s approval rate of applications is over 99 percent—reflect only the number of final applications submitted to and acted on by the court,” wrote Walton.

The court has eleven judges appointed by the chief justice of the Supreme Court.

A 2014 Congressional Research Service report described its “non-adversarial fashion” of operating.

“I addition to the judges, the FISC has a staff of five full-time legal advisors with expertise in foreign intelligence issues,” said CRS. “These legal advisers are said to conduct a thorough ‘vetting’ of all applications before the government presents them formally to the FISC judges.

“In light of the sensitive nature of its docket,” said CRS, “the FISA courts operate largely in secret and in a non-adversarial fashion.”

In 2009, the last year in which the court denied a final electronic surveillance application, the Justice Department submitted 1,329 applications for electronics surveillance, according to the annual report. The court approved 1,320, while modifying 14 that it approved. The government withdrew 8.

In addition, to the one application the court denied outright that year, it also denied one application in part.

In the seven years from 2009 through 2015, the Justice Department submitted 10,729 electronic surveillance applications to the court and the court approved 10,711. It approved 231 of those with modifications and the government withdrew 17. In those seven years, the only application denied was the one denied in 2009. The only one denied in part was the one denied in part in 2009.

In the thirteen years from 1996 through 2008, there were nine years when the court did not deny any of the government’s FISA applications for what the reports refer to as “electronic surveillance and physical search” or “electronic surveillance or physical search.”

In 2003, the court denied four FISA applications for “electronic surveillance and physical search;” in 2007, it denied 3; and in 2008, it denied one. It also denied one in part in 2006 and one in part in 2007.

The report for 2003 notes that in two of the four cases that were denied that year, the government eventually got approval for surveillance.

The FISA law requires that the attorney general approve applications for electronic surveillance under the act. “Each application,” the law says, “shall require the approval of the attorney general based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter.”

The law defines the “attorney general as “the Attorney General of the United States (or Acting Attorney General), the Deputy Attorney General, or, upon the designation of the Attorney General, the Assistant Attorney General designated as the Assistant Attorney General for National Security.”

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