Secret Court Admits It Can’t Verify When Government Breaks Surveillance Rules


The big news in The Washington Post on Friday was Barton Gellman’s huge scoop about the thousands of times the National Security Agency has broken privacy rules or overstepped its legal authority in recent years. But there’s another significant story in the paper worth paying attention to. In a written statement to the Post, the chief judge of the Foreign Intelligence Surveillance Court acknowledged that the court lacks tools to verify how often government surveillance breaks the court’s rules.“The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” U.S. District Judge Reggie Walton said in a written statement to the newspaper. “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.”

The statement from Walton was prompted by the secret internal government records revealed in Gellman’s article. As the Post pointed out, the Obama administration and intelligence officials have repeatedly pointed to the surveillance court, which oversees some NSA operations, as a key part of the oversight of the government’s surveillance efforts.

Under Foreign Intelligence Surveillance Act, the government is required to immediately notify the court if it believes court orders have been violated. But Gellmen’s article on Friday pointed to at least one instance in which the court did not learn of a new collection method used by the agency until it had been in use for a number of months. After learning of the new method, the court deemed it unconstitutional.

Late last month, Walton sent a letter to the Senate Judiciary Committee, laying out some details about the operations of the top secret court, including the way the court, its staff, and the government interact, along with how applications for court orders are handled.

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