"Is the NSA Spying Upon Judges?"

The question posed by the title of this post comes from this Courthouse News Service article on one reporter's lawsuit to compel the NSA to disclose requested documents potentially revealing whether the scope of its surveillance extends into judges' chambers.  It reports:

The 7-page lawsuit tersely summarizes the controversies stirred up by NSA spying on foreign leaders and U.S. citizens, and recent judicial rulings on it.

 

[Jason] Leopold claims that, in a fine example of Orwellian doublespeak, the NSA refused a senator's inquiry on whether it spies upon members of Congress, by replying that it can't tell because it's not allowed to examine its own collection of metadata unless it thinks a specific phone number may be associated with a specific foreign terrorist group.

 

Leopold says in the lawsuit: "The vast scope of the NSA's surveillance program has raised questions about whether the agency has spied on the coordinate branches of the federal government. In response to an inquiry from Sen. Bernie Sanders about whether the NSA spies on members of Congress, NSA director Gen. Keith Alexander responded, 'Nothing NSA does can fairly be characterized as 'spying on members of Congress or other American elected officials[.]' But the response stated that the agency could make no guarantees that representatives or senators have not had their telephone metadata caught in broad government sweeps. Further, Alexander did not rule out the possibility that the NSA would, in the future, examine the telephone metadata of specific members of Congress or other American elected officials. According to Alexander, 'The NSA can query the metadata only based on phone numbers reasonably suspected to be associated with specific foreign terrorist groups' and '[f]or that reason, NSA cannot lawfully search to determine if any records NSA has received under the program have included metadata of the phone calls of any member of Congress, other American elected officials, or any other American without that predicate.' But according to Sen. Feinstein, such a query apparently does not require approval from the FISA court.

 

"Jerrold Nadler, an attorney and congressman on the House Judiciary Committee who attended a secret briefing, relayed that he was told that the contents of a phone call could be accessed 'simply based on an analyst deciding that.' "These revelations beg the question of whether the NSA has spied on the third branch of government, the judiciary.

 

"Little is known about whether the NSA has surveilled judges or their staff. With regard to spying on lawyers in the United States more generally, a recent report published by the National Lawyers Guild, 'Breach of Privilege,' details covert governing spying on the legal profession by federal agencies, including the NSA.

 

"The NSA, and the executive branch more generally, have a powerful incentive in intercepting communications involving judges or their staff. For example, the NSA might desire to learn about deliberations by this court in cases involving Guantanamo detainees, or in cases involving the Foreign Intelligence Surveillance Court. It is not beyond peradventure that the NSA would conclude that such deliberations are relevant to an investigation into foreign terrorism and that a federal judge's phone number could be 'associated' with a foreign terrorist organization, in the broadest sense of that word.

 

"The Department of Justice, one of the defendants in this case, has previously taken the position that it has the legal authority to mislead federal courts on issues involving national security. Islamic Shura Council of S. Cal. v. FBI, 779 F. Supp. 2d 1114, 1117 (C.D. Calif. 2011) ('The Government asserts that it had to mislead the Court regarding the Government's response to Plaintiffs' FOIA request to avoid compromising national security.') To an agency which has taken the position that federal judges cannot be trusted to avoid compromising national security, it would be a logical step to approve, or at least to consider, surveillance of judges who handle national security cases. "