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Hidden Hands

Hidden Hands: Spy Court

The proceedings of the federal court that rules on the government’s requests to eavesdrop on foreign terrorists take place in total secrecy in a windowless room in Washington. Established by the Foreign Intelligence Surveillance Act of 1978, the court hears one side of the case only—the government’s. The judges almost never turn down the requests, prompting criticism that it’s little more than a rubber stamp for the administration. That’s untrue, says Steven Aftergood, who directs the Federation of American Scientists Project on Government Secrecy. “These judges are not hacks. I think they do a serious job with the tools that they are given,” he says. “It’s just that the framework is peculiar and problematic.”

That became clear on Aug. 21, when the Obama administration disclosed the court had reprimanded the National Security Agency for misleading the judges. On three occasions the NSA had misrepresented the scope of its espionage, the court said, and violated the Constitution by collecting e-mails of Americans who weren’t suspected of terrorism. It’s hard to evaluate whether the judges have real authority to keep spy agencies in check. Lawmakers must ultimately decide whether the court has enough power, Aftergood says. “It’s an occasion for Congress to ask itself, ‘Is this what we had in mind?’”

Hinman is an associate editor for Bloomberg Businessweek.

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