Today the Office of the Director of National Intelligence released new documents on its Tumblr page. One of the documents disclosed was a Supplemental Order by Judge John Bates. This Supplemental Order shows how statutory protections don’t have much meaning when they are interpreted in a secret, non-adversarial process.
The Supplemental Order deals with the issue of whether the Right to Financial Privacy Act precludes the FBI from collecting data from financial institutions pursuant to the FISA Business Records Provision. The Right to Financial Privacy Act prohibits government access to financial records except in certain circumstances specified in the statute. The statute does not list a request pursuant to the FISA Business Records Provision as one of the acceptable ways to obtain this information.
However, the Judge points out that one of the statutory exceptions allows certain designated FBI officials access to the records provided that the official finds they are relevant to a specific national security investigation. The Judge then holds that if an FBI agents finding of relevance satisfies the standard then surely His Courts finding of relevance shall suffice. You can break it down this way: the statute holds that the records are protected from the government except in specific situations A, B, C, and D. The FISA court rationalized that it’s determination, we’ll call it determination F, is like C. Even though the statute forbids everything that is not A, B, C, and D, since F is like C then the statute allows F. That is some fancy reasoning.
What happened behind closed doors is that a statute got a brand spanking new exception never contemplated by Congress. I can imagine that this very likely could have been the result had this happened in open court. However, in open court (or at least a process that leads to a conviction in open court thereby making the determination public) there would be an adversary telling the government and the Court that they are incorrect. There would have been a robust debate wherein each side presented its case and the court would have come to a conclusion.
Instead we get a secret court behind closed doors adding exceptions to statutes. The laws that your elected officials put in place to protect your financial records got an extra exception. I believe this is one of the dangers of a secret court with secret opinions. You get secret exceptions that are not subjected to democratic controls.