Concerns about inadequate intelligence oversight were confirmed after an April 2011 Department of Justice report revealed that every government request to electronically monitor terror suspects in the United States in 2010 was approved. The two page report said all 1,506 requests made by the government were authorized by the Foreign Intelligence Surveillance Court (FISC).   Compared to 2009, the report also said the FBI had more than doubled the number of U.S. persons it tracked using national security letters (NSLs) and more than quadrupled its use of secret court subpoenas, known as Section 215 orders. Section 215 orders are one of three expiring provisions of the Patriot Act up for reauthorization at the end of May.

“The FISC did not deny any applications in whole, or in part,” according to the April 19 report.

The FBI issued 24,287 NSL requests on 14,212 people in 2010. NSLs permit the FBI to contact a variety of sources, such as banks, credit companies and internet service providers, compelling them to provide information about the FBI target. There is no judicial oversight or approval process, and recipients of NSLs are prohibited from disclosing that they have received one. In 2009, the FBI requested 14,788 NSL requests concerning 6,114 US persons.

In 2010, the FBI made 96 applications for the section 215 orders. Section 215 orders give the government access to “any tangible thing,” including financial and medical records, even if there is no showing that the “thing” pertains to suspected terrorists or terrorist activities. This number is up from 21 in 2009.

That high success rate has generated concerns that the court’s oversight activity is deficient. “That’s been a traditional concern that the court might have become a rubber stamp and that its approval is only a formality,” Steven Aftergood, the director of the Project on Government Secrecy for the Federation of American Scientists, the group who obtained the report through a Freedom of Information Act (FOIA) request.

On May 12, 2011, the House Judiciary Committee voted favorably on legislation that would reauthorize three expiring provisions of the Patriot Act and sent it to the full House where it is expected to receive a vote by the end of May. The FISA Sunsets Reauthorization Act of 2011 (H.R. 1800): would extend for six years the roving wiretaps and Section 215 orders and makes permanent the “lone wolf” provision.  For more about these provisions, click here.

The FISC court was set up in 1978, and issues warrants for domestic surveillance that are unlike the warrants issued in criminal investigations. The secret court warrants, under the authority of the Foreign Intelligence Surveillance Act, grant the government broad authority to secretly monitor the electronic communications of persons in the United States, generally for intelligence purposes only. The targets of a FISA warrant may never learn of the surveillance and do not have an opportunity to challenge the warrants and evidence gathered if it is used in a criminal prosecution. All publicly available FISA court reports are here.