The Foreign Intelligence Surveillance Court issued an order on Friday directing the Department of Justice to respond no later than June 7 to a motion filed on May 23 by the Electronic Frontier Foundation (EFF).  The order was signed by Judge Reggie B. Walton, presiding judge of the surveillance court.

EFF had asked the Court to formally consent to the release of records in which the Court found government surveillance activities to be inconsistent with the Fourth Amendment to the Constitution.  In response to a prior Freedom of Information Act request, the Justice Department had asserted that Court rules did not permit such disclosure, though that position is not explicitly stated in Court rules.  To overcome this impasse, EFF asked the Court to affirmatively consent to disclosure of the requested records.

The case was first reported in Group wants special court to release ruling on unlawful U.S. surveillance by Ellen Nakashima, Washington Post, May 22.

For further background, see EFF Takes FOIA Fight Over Secret Wiretaps to the Foreign Intelligence Surveillance Court by Mark Rumold, May 22.

Chief Justice John Roberts has appointed Judge Michael W. Mosman of the District of Oregon to serve as a judge on the United States Foreign Intelligence Surveillance Court.

The appointment was effective May 4, 2013, and will extend through May 3, 2020, said Mr. Sheldon Snook, a spokesman for the Court.

Judge Mosman replaces Judge Roger Vinson, whose term on the surveillance court expired on May 3, 2013.

Judge Mosman, who was appointed to the bench by President George W. Bush, is generally considered a conservative.  But last March he drew criticism from some on the political right after he granted bail to one Reaz Qadir Khan, who was charged with conspiracy to provide material support to terrorists. Judge Mosman ordered Khan’s release over the government’s objections after he determined that the defendant was not a flight risk or a danger to the community.

“Incredibly, the judge, Michael Mosman, a George W. Bush appointee, allowed Khan to walk free from the federal courthouse pending trial,” complained the conservative watchdog group Judicial Watch in a March 11 posting.

The eleven-member Foreign Intelligence Surveillance Court reviews applications from government agencies for electronic surveillance and physical search under the Foreign Intelligence Surveillance Act.

In 2012, the Court approved 1,788 applications for electronic surveillance and denied none, as noted in a report to Congress last month.

“During calendar year 2012, the Government made 1,856 applications to the Foreign Intelligence Surveillance Court for authority to conduct electronic surveillance and/or physical searches for foreign intelligence purposes.”

That somewhat opaque statistic was disclosed in the Justice Department’s latest annual report to Congress on the Foreign Intelligence Surveillance Act, filed on Tuesday.  As is usually the case, none of the requests for electronic surveillance were denied by the Court.

No matter how it is sliced and diced, the newly disclosed number of applications does not yield much substance.  It means that the government submitted an average of 5 requests per day last year for intelligence surveillance or physical search.  It is about 5% higher than the number of applications the year before (1,745), but quite a bit lower than the figure from 2007 (2,371).

The number of applications does not correspond directly to the number of targets, since multiple applications may be submitted in the course of an individual investigation. Nor is the outcome of the surveillance or search activity indicated in a way that would tend to validate or invalidate the authorization after the fact.

In any case, the FIS Court did not deny any of the government’s requests for authority to conduct electronic surveillance in whole or in part, the report said, although unspecified modifications were made to 40 proposed orders. The report does not say whether or not any requests for physical search were disapproved or modified.

The government also made 212 applications for access to business records and “tangible things” for foreign intelligence purposes, almost the same as the 205 the year before.

And also in 2012, the FBI submitted 15,229 National Security Letter requests for information concerning 6,223 different U.S. persons (“excluding requests for subscriber information only”), down somewhat from the 16,511 requests (concerning 7,201 different persons) the year before.

As an instrument of public oversight, the annual reports on FISA are only minimally informative.  They register gross levels of activity, but they provide no measures of quality, performance or significance.  Neither counterintelligence successes nor failures can be discerned from the reports.  Nor can one conclude from the data presented that the FISA process is functioning as intended, or that it needs to be curbed or refined.

Congressional leaders blocked efforts to impose new or stronger public reporting requirements when the FISA Amendments Act was reauthorized late last year. However, Sen. Jeff Merkley and several Senate colleagues asked the FIS Court to summarize its opinions in such a way as to facilitate their eventual declassification and disclosure.  This request has produced no known results to date.

The FISA itself is a product of a rich period of political ferment in the 1970s when public and private institutions converged to promote increased transparency, improved oversight and meaningful new constraints on government authority.  Investigative journalists wrote groundbreaking stories, Congressional committees held historic hearings, political activists and ordinary citizens mobilized to defend their interests, leading to real and lasting changes. On the legislative front, these included passage of an invigorated Freedom of Information Act, along with the Privacy Act, the Government in the Sunshine Act, and the FISA, which subjected intelligence surveillance activities to at least a degree of independent judicial review.

An interesting account of that momentous period can be found in the new book Reining in the State: Civil Society and Congress in the Vietnam and Watergate Eras by Katherine A. Scott, University Press of Kansas, March 2013.

In a memorandum to agency heads last week, President Obama transmitted formal requirements that agencies must meet in order “to deter, detect, and mitigate actions by employees who may represent a threat to national security.”

Along with espionage and acts of violence, the National Insider Threat Policy notably extends to the “unauthorized disclosure of classified information, including the vast amounts of classified data available on interconnected United States Government computer networks.” To combat such unauthorized disclosures, agencies are required to “monitor employee use of classified networks.”

The new standards, which have not been made publicly available [update: now available here], were developed by an interagency Insider Threat Task Force that was established by President Obama in the October 2011 executive order 13587, and they reflect the ongoing tightening of safeguards on classified information in response to the voluminous leaks of the last few years.

But the latest issuance also illustrates the superfluousness (or worse) of current congressional action concerning leaks.  Executive branch agencies do not need Congress to tell them to develop “a comprehensive insider threat program management plan,” as would be required by the Senate version of the pending FY2013 Intelligence Authorization Act (section 509).  Such plans will go forward in any case.

Sen. Ron Wyden has placed a hold on the pending intelligence bill, citing objections to several of the proposed anti-leak provisions contained in Title V of the bill. He said the proposed steps were misguided or counterproductive.

“I am concerned that they will lead to less-informed public debate about national security issues, and also undermine the due process rights of intelligence agency employees, without actually enhancing national security,” he said on November 14.  (See related coverage from FDL, POGO, LAT.)

The most problematic measures in the Senate bill are those intended to restrict contacts between reporters and government officials.

Senator Wyden said that legislative actions to limit the ability of the press to report on classified matters could undermine or cripple the intelligence oversight process.

“I have been on the Senate Intelligence Committee for 12 years now, and I can recall numerous specific instances where I found out about serious government wrongdoing–such as the NSA’s warrantless wiretapping program, or the CIA’s coercive interrogation program–only as a result of disclosures by the press,” he said.

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The record of a July 2012 House Judiciary Committee hearing on National Security Leaks and the Law has recently been published.

Congressional oversight of intelligence is “dysfunctional,” according to a new report from the liberal Center for American Progress.

Some of the most urgent and fundamental policy issues facing the nation are matters of intelligence policy: What are the proper boundaries of domestic intelligence surveillance? What is the legal framework for interrogation of enemy detainees? Why haven’t the recommendations of the 9/11 Commission been effectively implemented?

But at a moment when intelligence policy is relatively high on the public agenda, the intelligence oversight committees in Congress seem to have little to contribute.

Even on specific intelligence questions such as the conduct of warrantless domestic surveillance by the National Security Agency, the public can gain more insight from the Senate Judiciary Committee, which has held several public hearings on the subject, than from the Senate Intelligence Committee, which has held none.

The new Center for American Progress report provides a useful survey of the history of intelligence oversight and its current failings, along with a prescription for improvement.

“Correcting the problems that plague congressional oversight of intelligence will not require dramatic changes in the existing oversight structure. Congress has all the tools it needs to conduct its oversight responsibilities effectively….it is simply not using them. It must.”

See “No Mere Oversight: Congressional Oversight of Intelligence is Broken,” June 13, 2006.

Some of the limitations of intelligence oversight are implicit in the structure of the process.

For an earlier (1992) self-critical account by a staff member of the Senate Intelligence Committee, see “Congressional Oversight of Intelligence: One Perspective” by Mary K. Sturtevant, American Intelligence Journal, Summer 1992.

A recent study (pdf) of Romania’s intelligence apparatus finds that “legislative control of intelligence in Romania can be estimated on a low-medium-high scale as ‘medium to high’.”

Furthermore, in Romania “the budgets of the intelligence agencies are transparent,” which is more than can be said about U.S. intelligence.

See “The Intelligence Phenomenon in a New Democratic Milieu: Romania — A Case Study” by Valentin Fernand Filip, Naval Postgraduate School, March 2006.