FISC Opinions on Warrantless Wiretapping before the Protect America Act

In 2005, The New York Times revealed the existence of the Terrorist Screening Program (“TSP”) that the NSA had been conducting since 2001 involving massive, warrantless surveillance of telephone and email communications. In response to the outcry over the Bush Administration’s unilateral authorization of the surveillance, Congress authorized very similar warrantless surveillance for national security purposes in the Protect America Act (“PAA”) on August 5, 2007, and, after the PAA expired, in the FISA Amendments Act (“FAA”) of 2008. It was known, however, that in January 2007, one FISC judge had authorized warrantless surveillance of international email communications entering and leaving the United States. A few months later, another FISC judge had refused to authorize such surveillance. Subsequently, the Bush Administration’s efforts led to Congressional authorization of warrantless surveillance in the PAA and, later, the FAA.

In response to further information leaked by Snowden, The New York Times and the EFF filed FOIA actions in, respectively, the United District Court for the Southern District of New York on June 3, 2014, and the United States District Court for the District Court of Columbia on May 1, 2014, seeking FISC opinions of 2007 and associated legal documents pertaining to judicial authorization of warrantless surveillance before the PAA. On December 12, 2014, the government responded to the FOIA actions by releasing heavily redacted versions of the requested FISC opinions and associated government filings.

The release also included an Order on April 5, 2007 in which Judge Howard authorized a one-time extension of the warrant for indiscriminate interception of communications which he had granted on January 7, but which Judge Vinson refused to renew on April 3.

In further response to the EFF’s and New York Times’ FOIA actions, on January 26, 2015, the government released redacted versions of an Order by Judge Vinson on May 31, 2007 and an Order and Memorandum Opinion by Judge Vinson on August 2, 2007.

On January 9, 2015, the Justice Department responded to a court order in another FOIA action brought by the New York Times by releasing a redacted version of a report issued by the DOJ’s Inspector General (“IG”) in September 2012.

These materials are discussed in separate posts.

Leave a Reply