FISA

[Magda Hassan]

Sunday, July 07, 2013

Star Chamber 2013
by digby

"The Star Chamber has, for centuries, symbolized disregard of basic individual rights ..." US Supreme Court, Faretta v. California, 422 U.S. 806 (1975)

I suppose that references to The Star Chamber are some sort of cliche these days. It's surely considered to be typically shrill, emo-prog, over the top whining to make such comparisons to what's happening with our secret surveillance state.

But if you can read this story in today's New York Times without your mind turning for at least a few seconds to this idea, then I don't think you're paying attention (emphasis mine.)

In more than a dozen classified rulings, the nation's surveillance court has created a secret body of lawgiving 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 cyberattacks, 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."

While President Obama and his intelligence advisers have spoken of the surveillance programs leaked by Mr. Snowden mainly in terms of combating terrorism, the court has also interpreted the law in ways that extend into other national security concerns. In one recent case, for instance, intelligence officials were able to get access to an e-mail attachment sent within the United States because they said they were worried that the e-mail contained a schematic drawing or a diagram possibly connected to Iran's nuclear program.

In the past, that probably would have required a court warrant because the suspicious e-mail involved American communications. In this case, however, a little-noticed provision in a 2008 law, expanding the definition of "foreign intelligence" to include "weapons of mass destruction," was used to justify access to the message.

The court's use of that language has allowed intelligence officials to get wider access to data and communications that they believe may be linked to nuclear proliferation, the officials said. They added that other secret findings had eased access to data on espionage, cyberattacks and other possible threats connected to foreign intelligence.

"The definition of foreign intelligence' is very broad," another former intelligence official said in an interview. "An espionage target, a nuclear proliferation target, that all falls within FISA, and the court has signed off on that."

(I'm going to guess that "narco-terrorism" conveniently does too.)

The most fatuous comment President Obama has ever made was this:

Rose: "Should this be transparent in some way?"

Obama: "It is transparent, that's why we set up the FISA court. The whole point of my concern before I was president -- because some people say well, Obama was this raving liberal before, now he's Dick Cheney. Dick Cheney sometimes says, 'Yes, you know, he took it all, lock stock and barrel.' My concern has always been not that we shouldn't do intelligence gathering to prevent terrorism but rather are we setting up a system of checks and balances?"

That the secret FISA Court is transparent was ridiculous on its face. That it has any "checks and balances" is ludicrous. But with these revelations, those comments enter George W. Bush territory for sheer idiocy.

And there's more, lots more. For instance, the article points out that 10 of the 11 judges on the FISA court were appointed by Republican presidents. And, if you'll recall, they are the worst of the worst:

A retired federal judge warned Friday against blind faith in the secret court deciding the scope of U.S. government surveillance. During a panel discussion on constitutional privacy protection in the wake of a leaked Foreign Intelligence Surveillance Court decision that revealed widespread NSA data collection, U.S. District Judge Nancy Gertner stood up in the audience to counter the statements of conservative law professor Nathan Sales that secret surveillance requests are subject to meaningful judicial review. She cautioned:

As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.

Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said.

Gertner, now a professor at Harvard Law School who teaches criminal law and criminal procedure, was a civil rights and criminal defense lawyer before being confirmed to the federal bench in 1993. In an interview with ThinkProgress, Gertner explained that the selection process for the secret national security court formed in 1978 is more "anointment" than appointment, with the Chief Justice of the United States now John G. Roberts selecting from a pool of already-conservative federal judges those he thinks are most suited to decide national security cases in secret:

It's an anointment process. It's not a selection process. But you know, it's not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it's a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.

And now we know the scope of their "review" is much larger than we knew and that it includes the rewriting of the law without any accountability or outside review at all:

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

I'm truly shocked by this, despite my knowledge that the military industrial complex and the secret surveillance state has been a constant ever since the US became an Imperial power after WWII. The sheer audacity of it, particularly having the court that was createdspecifically to provide some oversight of government surveillance turn into a lawless, secret parallel Supreme Court made up of a bunch of hard core reactionaries, overseen by an administration elected in large part because its promises of transparency and the rule of law is just too rich.

Of course, it's that "rule of law" thing that everyone sees as a get out of jail free card. After all, the FISA Court is legal, right? Who says they can't turn themselves into a parallel Supreme Court and completely transform the Fourth Amendment in secret? It's not as if the congress specifically told them not to do that. It's all their fault.

One must assume that all those who like Jonathan Alter, defend this entire regime (and the president) because all that matters is that it's "legal", equally defend the three strikes laws, federal mandatory minimums for marijuana possession and sentencing disparities between cracks and powder cocaine. Not to mention the death penalty. All perfectly legal. Also barbaric. But hey, if it's on the books It Must Be Good, right? Because we got rid of all the Bad Laws and now everything's perfect.

I guess if you look at history you shouldn't be surprised that all it took to go back to the 17th Century idea of the Rule 'O Law was a handful of violent religious fanatics. On the other hand, it's pretty obvious that the ruling elite are always ready to exploit any opportunity to enhance their power. I guess our Constitution was pretty weak tea after all. What a shame.
http://digbysblog.blogspot.com.br/2013/0...-2013.html