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FISA & Hepting v AT&T

Hepting v AT&T is the name of the EFF suit I blogged about yesterday and FISA is the Foreign Intelligence Surveillance Act that "prescribes procedures for requesting judicial authorization for electronic surveillance and physical search of persons engaged in espionage or international terrorism against the United States on behalf of a foreign power," according the Federation of American Scientists (FAS). As it happens, FAS has a Project on Government Secrecy, on behalf of which Steven Aftergood produces an e-mail newsletter called Secrecy News. In today's issue he made some interesting points in connection with FISA and Hepting v AT&T [emphasis added].


The Foreign Intelligence Surveillance Act, the 1978 law that is supposed to govern surveillance of foreign intelligence targets within the U.S., has had an unusually dynamic legislative history. It has been modified in a hundred ways on at least a dozen occasions.

Despite the demonstrated adaptability of this statute, the Bush Administration chose to conduct its NSA Terrorist Surveillance Program outside of the legally binding FISA framework and has not sought to amend it....

"Each time the Administration has come to Congress and asked to modernize FISA, Congress has said 'yes'," [Rep. Jane Harman, ranking member of the House Intelligence Committee] recalled....

She asked the Congressional Research Service to provide a listing of
prior amendments to the FISA, which turned out to be a 29 page


... The court's rejection of unconditional judicial deference is
noteworthy. Although the executive branch's assertion of the state
secrets privilege has been denied on at least four occasions in the
past, those denials seem to have been based on technical defects or
procedural failings rather than a substantial judicial assessment of
the merits of the claim.

In other words this was the first time (out of something like 60 times since it was first used, in 1953) a court has ever denied the government's assertion of the state secrets privilege on anything but a technicality.

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