For the second consecutive year, Justice Department applications to search or eavesdrop on suspected terrorists and spies dipped significantly, according to department figures provided to Congress.
The Justice Department sent 1,376 applications — for physical searches, electronic surveillance or some combination of the two — to the Foreign Intelligence Surveillance Court in 2009. That’s a 34 percent drop from 2008, during which the department made 2,082 applications, according to last year’s report to Congress.
In 2009, the spy court granted all but nine applications, and eight out of those nine were withdrawn voluntarily by the government. The court modified another 14 applications.
The court was established in 1978 with the Foreign Intelligence Surveillance Act. In national security investigations, the government must get the court’s approval to monitor phone conversations or e-mail messages of suspected terrorists and spies in the U.S. The law does not apply to surveillance outside the U.S., unless the target is an American.
The 2009 figures represent the second consecutive decrease in warrants approved by the court. In 2007, the spy court approved a record 2,370 warrants, about 12 percent more than in 2008.
A Justice Department official attributed the drop off to the recent changes in the law and cautioned against drawing inferences based on the numbers alone.
“The number of Foreign Intelligence Surveillance Act applications submitted to the Foreign Intelligence Surveillance Court decreased in 2008 and again in 2009 due to significant changes in the legal authorities that govern FISA surveillance — specifically, the enactment of the FISA Amendments Act in 2008 — and shifting operational demands, but the fluctuation in the number of applications does not in any way reflect a change in coverage,” the official said.
William Moschella, former Principal Associate Deputy Attorney General in the Bush administration, said the 2008 amendments eliminated the need for FISA warrants in some instances.
In a secret ruling in 2007, a FISA judge found that surveillance of purely foreign communications that pass through a U.S. communications node was illegal without a warrant. The ruling helped fuel the Bush administration’s efforts to amend the law, and several senior law enforcement and intelligence officials testified about the need to update FISA to deal with evolving communication technologies.
“They don’t impact the need for FISAs for U.S. persons,” Moschella, a shareholder at Brownstein Hyatt Farber Schreck LLP, said of the changes.
While FISA requests decreased, requests for wiretaps in criminal investigations, known as Title III applications, climbed in 2009, according to this report by the Administrative Office of the U.S. Courts.
A total of 2,376 federal and state applications for orders authorizing wiretaps was reported, a 26 percent increase over 2008. All were granted.
The 2009 FISA figures were presented in a April 30 letter from Assistant Attorney General Ronald Weich to Congress. The letter is embedded below.