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In Secret, Court Vastly Broadens Powers of N.S.A.


WASHINGTON — In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyber attacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

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MILLER: Obamacare’s hefty tax bill


By Emily Miller
The Washington Times

President Obama promised to make health care more affordable, but instead he’s done the opposite. The White House and congressional Democrats slipped 20 new taxes into the Obamacare legislation to raise $500 billion to help pay for the new entitlement’s $2.6 trillion cost. It’s now up to the Supreme Court to provide relief.

Mr. Obama claims to want to raise taxes only on “millionaires and billionaires,” but his signature health care law hits the middle class hard. Americans for Tax Reform (ATR) analyzed the 2,700-page bill and came up with a comprehensive list of its levies.

“Obama promised no taxes of any kind for those who earn less than $250,000. Obamacare broke that pledge repeatedly,” ATR President Grover Norquist told The Washington Times. “They deliberately hid the taxes and wisely understood that delaying the pain by making the effective date after the election, maybe you could get through the election.”

Until last year, people could pay for over-the-counter medications with tax-free Flexible Savings Accounts and Health Savings Accounts. No more, thanks to Obamacare’s medicine cabinet tax. Starting on Jan. 1, these tax-free accounts will be capped at $2,500, punishing families who face higher than normal medical expenses. The threshold for deducting those costs will also go up from 7.5 percent to 10 percent of adjusted gross income in 2013.

The left mistakenly thinks companies will just absorb the extra charges from Uncle Sam and not pass them along to consumers. Medical-device manufacturers will be smacked with a 2.3 percent tax in the new year, driving up the costs of things like wheelchairs, stents and pacemakers. Innovative drug companies already are sending Washington $2.3 billion in taxes for a surcharge on their share of sales, which helps explain why prescription-drug spending will see a projected 10.7 percent increase in 2014.

That’s also when health-insurance companies face a new surcharge on sales that will result in an estimated $350 to $400 increase in annual premiums. So much for the president’s promise to reduce the cost of insurance by $2,500.

Americans who refuse to go along with Obamacare by buying a policy not approved by the government will be charged 1 percent of their income in 2014, rising to 2.5 percent in 2016. Employers with more than 50 employees who don’t offer health coverage and have at least one employee who qualifies for a health tax credit will be penalized $2,000 per person. If the employee receives coverage through this exchange, the penalty goes up to $3,000. An employer with a 30- to 60-day enrollment waiting period will have to pay $400 per person.

These new penalties on employers who don’t provide the health coverage dictated by bureaucrats will amount to $113 billion. Expect companies to pay less and lay off more. Growth will be further stunted when January brings a new levy on investment income for those who earn more than $200,000, making the tax on capital gains 23.8 percent and dividends a staggering 43.4 percent.

This monster law already has created 159 new programs and boards in Washington. As Mr. Norquist explained, “It’s a huge increase in the size and scope of government because the government is getting control of 15 percent of the economy.” The Supreme Court needs to reject this unconstitutional power grab and return the money to the people who actually earned it.

Emily Miller is a senior editor for the Opinion pages at The Washington Times.

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