Say Anything Blog

Back in December of 2005, as the first round of hysteria about the NSA’s terrorist surveillance program was in full force, I noted something odd about the way the activities of the FIS Court were being reported. This inspired me to go back to the raw data in an article on Bayosphere.

At the time I noted some interesting trends which seemed to indicate that:

The recent resignation of Judge Robertson and the immediately subsequent arrangement of the Bush Administration to brief the FISA Court on the full extent of the NSA’s current activities thus suggests (but does not prove) that the statistical anomaly (and very possibly the leak) was indeed Robertson.

I now present the 2005 figures for FIS court activity (in addition to the record since inception for the court):

Raw Data:

FISA Court Applications (from this source or as listed)

Year Apps Rej Changed

1979 199 0 0

1980 319 0 0

1981 431 0 0

1982 473 0 0

1983 549 0 0

1984 635 0 0

1985 587 0 0

1986 573 0 0

1987 512 0 0

1988 534 0 0

1989 546 0 0

1990 595 0 0

1991 593 0 0

1992 484 0 0

1993 509 0 0

1994 576 0 0

1995 697 0 0

1996 839 0 0

1997 749 0 0

1998 796 0 0 (source)

1999 886 0 0 (source)

2000 1005 0 1 (source)

2001 932 0 4 (source)

2002 1228 0/2(1) 0 (source)

2003 1727 4 79 (source)

2004 1758 0 94 (source)

2005 2074 0 61 (source)

New Reporting for 2005 Records Requests National Security Letters

Apps rej ch Persons Apps rej ch

155 0 2 3051 9245 0 0

(1) Two were initially denied by the FISA court and subsequently reversed on appeal to the FISA Court of Review.

Note the rate of both rejections and changes was 0 between inception and 1999.

2000 yields the first changes (which could be anomalous and at any rate is statistically insignificant).

2001 finds 4 modifications out of 932 applications (0.43%), which again could be anomalous.

2002 shows 2 outright rejections (reversed on appeal to the FISA Court of Review, but they would have been a 0.16% rate for the year and 0.01% cumulative rate) and no Changes.

2003 shows 4 outright rejections (0.23% for that year, 0.02% cumulative) and 79 Changes (4.57% for the year, 0.47 Cumulative)

2004 shows no rejections and 94 (5.35% for that year, 0.50 Cumulative) Changes.

2005 shows no rejections (though two were withdrawn by the government, and one of those two was subsequently re-submitted and approved) and 61 Changes (2.9% for that year, )

Note that all rejections and 173 (out of 238, or 72.68%) fall during the tenure of Judge Robertson.

This statistical evidence (the near halving of the rate of changes for 2005) tends to reinforce my suspicion that the resignation of Judge Robertson and the immediately subsequent arrangement of the Bush Administration to brief the FIS Court on the full extent of the NSA’s terrorist surveillance activities were indeed related, and it further strongly suggests (but does not prove) that the statistical anomaly (and very possibly the leak) was indeed Robertson.

Note also new reporting categories are included in the 2005 report:

Applications for Access to Certain Business Records (Including the Production of Tangible Things) Made During Calendar Year 2005 (50 U.S.C. § 1862(c) (2))


In his April 4, 2005 testimony before the Senate Judiciary Committee, Attorney General Gonzales noted that the Justice Department was increasingly using business records orders to obtain subscriber information, such as names and addresses, for telephone numbers captured through court-ordered pen register or trap and trace devices. This information is routinely obtained in criminal investigations. The use of business records requests in conjunction with pen register applications accounts for much of the increase in the number of business records orders reported here as compared to statistics previously made public. Section 128 of the USA PATRIOT Improvement and Reauthorization Act specifically amended the pen register provisions of the FISA statute (50 U.S.C. § 1842) to authorize the disclosure of subscriber information in connection with such court-authorized collection. We expect that this new provision will result in a decrease in the number of requests for business records orders that are reported in the future.

and

Requests Made for Certain Information Concerning Different United States Persons Pursuant to National Security Letters During Calendar Year 2005 (USA PATRIOT Improvement and Reauthorization Act, Pub. L. No. 109-177, § 118 (2006))


During calendar year 2005, the Government made requests for certain information concerning 3,501 different United States persons pursuant to National Security Letters (NSLs). During this time frame, the total number of NSL requests (excluding NSLs for subscriber information) for information concerning U.S. persons totaled 9,254. In other words, there were 3,501 different U.S. persons involved in the total of 9,254 NSLs that related to U.S. persons.

These totals reflects the Government’s good-faith effort to provide the most accurate numbers possible. However, because of a number of factors (for example, if a targeted individual’s name has more than one variant (e.g., John Doe and Johnny Doe) or the target uses one or more aliases), it is possible that despite this effort, the total number reported above could include instances in which one targeted individual was counted more than once. In addition, four statutes authorize the FBI’s use of NSLs. The FBI traditionally has tracked NSL totals separately within each category and does not cross-reference these categories so as to separately determine the total number of NSLs for an individual U.S. person. As a result, it is possible that, despite the best efforts of FBI personnel, the total number reported here could include circumstances in which one person is counted multiple times.

Conclusions

It seems clear that the Executive is keeping the Courts and Congress apprised of their surveilance activities. It also seems apparent that the FIS Court is being used as intended: to provide legal review and authorization of surveillance where criminal prosecution is viewed as the appropriate and likely end state.

Details of FIS Court Members and FISA Court of Review Judges below the fold.

FISA Court Members (Source)

Name Appointed Expires

KOLLAR-KOTELLY, Colleen 05/19/2002 05/18/2009

(Presiding)

BATES, John D. 02/22/2006 05/18/2013

BENSON, Dee. 4/08/2004 5/18/2011

BROOMFIELD, Robert C. 10/01/2002 05/18/2009

CARR, James G. 05/19/2002 05/18/2008

GORTON, Nathaniel M. 05/18/2001 05/18/2008

HILTON, Claude M. E.D.Va. 05/18/2001 05/18/2007

HOWARD, Malcolm 5/19/2005 5/18/2012

KAZEN, George P. 7/15/2003 5/18/2010

SCULLIN Jr., Frederick J. 5/19/2004 5/18/2011

VINSON, Roger 5/04/2006 5/18/2013

FISA Court of Review Members

Name Appointed Expires

LEAVY, Edward 09/25/2001 05/18/2008

Presiding

WINTER, Ralph K. Jr. Second Circuit 05/18/2003 05/18/2010

SELYA, Bruce M. 8/08/2005 8/18/2012