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Kafka's America: Secret Courts, Secret Laws, and Total Surveillance
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Kafka's America: Secret Courts, Secret Laws, and Total Surveillance

By John Whitehead[TABLE="width: 100%"]
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[TD="width: 40%"] 7/24/13[/TD]
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In a bizarre and ludicrous attempt at "transparency," the Obama administration has announced that it asked a secret court to approve a secret order to allow the government to keep spying on millions of Americans, and the secret court has granted its request.


Late on Friday, July 19, 2013, the Foreign Intelligence Surveillance Court (FISC)--a secret court that operates out of an undisclosed federal building in Washington, DC--quietly renewed an order from the National Security Agency to have Verizon Communications hand over hundreds of millions of Americans' telephone records to government officials. In so doing, the government has doubled down on the numerous spying programs currently aimed at the American people, some of which were exposed by whistleblower Edward Snowden, who temporarily pulled back the veil on the government's gigantic spying apparatus.


As a sign of just how disconnected and out-of-touch with reality those in the Beltway are, National Intelligence Director James Clapper actually suggested that declassifying and publicly disclosing the government application was a show of good faith by the government. The order, submitted by the federal government and approved by the FISC, is set to expire every three months and is re-approved without fail. This is the bizarre logic that now defines American governance: it doesn't matter if we spy on you without your consent, so long as you know that we're doing it, and so long as we give the impression that there is a process by which a court reviews the order.


Ironically, the seeds for this brave new world were planted in an attempt to reform the ludicrous mantra of the Nixon administration that "if the president does it, it's not illegal." In the aftermath of the Watergate incident, the Senate held meetings under the Church Committee in order to determine exactly what sorts of illicit activities the American intelligence apparatus was engaged in under the direction of Nixon, and how future violations of the law could be stopped. The result was the passage of the Foreign Intelligence Surveillance Acts (FISA), and the creation of the FISC, which was supposed to oversee and correct how intelligence information is collated.


Fast forward to the present day, and what we see is that the alleged solution to the problem of government entities engaging in unjustified and illegal surveillance has instead become the main perpetrator of such activities.


When FISA was passed in 1978, it provided for a court of seven federal judges from seven different federal circuits who would serve for seven years. The judges on the FISC are appointed by the Chief Justice of the Supreme Court and may only serve once. The USA PATRIOT Act, however, increased the number of judges to 11, and altered the standards under which the government could engage in surveillance.


Thus, what was ostensibly designed as a mechanism to protect the American people from unwarranted government surveillance became instead a bureaucratic mechanism to rubber-stamp government applications for surveillance. Indeed, the Court is structured such that applications for surveillance are rarely ever denied.


If a judge were to reject an application, for example, that judge would have to immediately write a report detailing every reason for the rejection, then transmit the report to a 3-person court of review. If that court finds that the application was properly denied, it must also write a report, which is then subject to a writ of certiorari by the Supreme Court. However, no reviews are necessary if an application is granted. This bias towards approving applications has played out predictably over the history of the court: out of 33,949 total applications, only 11 have been denied. Out of those 11, at least four were granted partial warrants later.


Deference to government requests for surveillance has only been exacerbated since 9/11. Before the PATRIOT Act was passed, collection of foreign-intelligence information had to be the sole or primary purpose of the surveillance. However, after the PATRIOT Act, collecting foreign-intelligence information merely had to be a "significant" part of the surveillance. The PATRIOT Act also allowed for a "roving wiretap," which meant that government agents no longer had to designate a particular number or line to be bugged. This has led to the government forcing telephone and internet providers -- some willingly and some not so willingly -- to hand over vast troves of information on American communications.


Unnamed officials familiar with the inner workings of the FISC have noted that the Court's mission has vastly expanded in the past few years, from simply granting warrants for surveillance to settling constitutional questions about surveillance in classified decisions, some almost one hundred pages long. For example, the FISC has gone so far as to determine that the Fourth Amendment requirement for a search warrant does not apply when it comes to the NSA collecting and analyzing data of Americans' communications.


To make matters worse, the only party represented before the Court is the government, and the Court's decisions are rarely made public. It's unclear if the corporations that are readily sharing Americans' communications data are even authorized to appear before the court. Appeals are rare, and none has ever made it to the US Supreme Court. Furthermore, customers of the big telecoms whose data is being collected by the federal government do not have standing to challenge FISC rulings.


In truth, the FISC has basically become a parallel Supreme Court, but one that operates in almost total secrecy. As the editorial board of the New York Times has pointed out, even if the Court is operating completely within the bounds of established law when approving hundreds of requests for surveillance each year, "the public will never know because no one was allowed to make a counterargument."


The biases of the Court are exacerbated by the fact that since judges only serve seven-year terms, they are usually all chosen by the same Chief Justice of the U.S. Supreme Court. Currently, every single FISC judge has been appointed by Chief Justice Roberts. Furthermore, all but one are Republicans. Roberts also appointed all three members of the Court of Review, which hears appeals to FISC decisions. Thus, the Electronic Privacy Information Center's (EPIC) emergency appeal to the U.S. Supreme Court to end the NSA surveillance program is likely to fall on deaf ears.


Justice James Robertson, who served on the FISC from 2002 to 2005, has strongly condemned the power of the Court, claiming that it has become an "administrative agency, which makes and approves rules for others to follow. That's not the bailiwick of judges. Judges don't make policy." Yet in the bizarre bureaucratic nightmare we have created for ourselves, that is exactly what they do.


The runaround and circular logic of the courts, Congress, the intelligence agencies, and the White House calls to mind Franz Kafka's various depictions of bureaucracy gone mad, which have colored our civilization's understanding of the shortcomings of a government that is only accountable to itself. As Bertolt Brecht wrote, "Kafka described with wonderful imaginative power the future concentration camps, the future instability of the law, the future absolutism of the state Apparat."


One of Kafka's most famous novels, The Trial, tells the story of Josef K., an ordinary middle manager who one morning awakes to find himself accused of a terrible crime -- a crime that is too awful for his accusers to speak of. While at times absurdly funny, The Trial is ultimately a frightening depiction of what it means to live under a regime that operates on a circular logic that prevents outsiders, including those subject to its rule, from understanding -- let alone challenging - the rules of the game, and who is making them.


Legal scholar Daniel J. Solove has expounded upon this metaphor, pointing out that:


The problems captured by the Kafka metaphor are problems of information processing--the storage, use, or analysis of data--rather than information collection. They affect the power relationships between people and the institutions of the modern state. They not only frustrate the individual by creating a sense of helplessness and powerlessness, but they also affect social structure by altering the kind of relationships people have with the institutions that make important decisions about their lives.


Josef K's plight, one of bureaucratic lunacy and an inability to discover the identity of his accusers, is increasingly an American reality. We now live in a society in which a person can be accused of any number of crimes without knowing what exactly he has done. He might be apprehended in the middle of the night by a roving band of SWAT police. He might find himself on a no-fly list, unable to travel for reasons undisclosed. He might have his phones or internet tapped based upon a secret order handed down by a secret court, with no recourse to discover why he was targeted. Indeed, this is Kafka's nightmare, and it is slowly becoming America's reality.
"Let me issue and control a nation's money and I care not who writes the laws. - Mayer Rothschild
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass
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#2
Whatever happened to "America the land of the free"?
The shadow is a moral problem that challenges the whole ego-personality, for no one can become conscious of the shadow without considerable moral effort. To become conscious of it involves recognizing the dark aspects of the personality as present and real. This act is the essential condition for any kind of self-knowledge.
Carl Jung - Aion (1951). CW 9, Part II: P.14
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#3
David Guyatt Wrote:Whatever happened to "America the land of the free"?
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Don't know David. I personally have not seen hide nor hair of it since 11/22/63 and can see that it was disappearing long before that. [I believe the Native American's caught on long ago to what was what; the African slaves ditto!] Somethings are still 'free'...I don't believe they charge for waterboarding...........or other forms of rendition, torture, incarceration, execution....its 'on the house'. One is still free to shop, watch TV, keep your mouth shut on political/economic/social issues, and die.....all the rest is taxed, repressed or non-existent. Hey, but remember - we are number one....at something....<img src="images/smilies/loco.gif" border="0" alt="" title="Loco" smilieid="204" class="inlineimg"> ...but Freedom it is NOT!
"Let me issue and control a nation's money and I care not who writes the laws. - Mayer Rothschild
"Civil disobedience is not our problem. Our problem is civil obedience! People are obedient in the face of poverty, starvation, stupidity, war, and cruelty. Our problem is that grand thieves are running the country. That's our problem!" - Howard Zinn
"If there is no struggle there is no progress. Power concedes nothing without a demand. It never did and never will" - Frederick Douglass
Reply
#4
As a good consumer, you are free to choose from an unlimited variety of energy drinks, fake food and techno-gadgets. This is what most passes for freedom in the US today.
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#5
Tracy Riddle Wrote:As a good consumer, you are free to choose from an unlimited variety of energy drinks, fake food and techno-gadgets. This is what most passes for freedom in the US today.

And don't forget personalized license plates.
Reply
#6
Albert Rossi Wrote:
Tracy Riddle Wrote:As a good consumer, you are free to choose from an unlimited variety of energy drinks, fake food and techno-gadgets. This is what most passes for freedom in the US today.

And don't forget personalized license plates.
And don't forget that any one can ring in and vote for their favorite contestant in the Big Brother house. Real democracy in action. :flypig:
"The philosophers have only interpreted the world, in various ways. The point, however, is to change it." Karl Marx

"He would, wouldn't he?" Mandy Rice-Davies. When asked in court whether she knew that Lord Astor had denied having sex with her.

“I think it would be a good idea” Ghandi, when asked about Western Civilisation.
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#7
Magda Hassan Wrote:
Albert Rossi Wrote:
Tracy Riddle Wrote:As a good consumer, you are free to choose from an unlimited variety of energy drinks, fake food and techno-gadgets. This is what most passes for freedom in the US today.

And don't forget personalized license plates.
And don't forget that any one can ring in and vote for their favorite contestant in the Big Brother house. Real democracy in action. :flypig:

Not.

Around the globe there have been allegations of vote-rigging in celebrity contests to ensure that the contestants attracting the largest viewing figures and audience for advertisements are kept in the house / competition / jungle whatever.

Still, if they'll rig a Presidential election, rigging a celebrity contest is surely to be expected.....

:cheer:
"It means this War was never political at all, the politics was all theatre, all just to keep the people distracted...."
"Proverbs for Paranoids 4: You hide, They seek."
"They are in Love. Fuck the War."

Gravity's Rainbow, Thomas Pynchon

"Ccollanan Pachacamac ricuy auccacunac yahuarniy hichascancuta."
The last words of the last Inka, Tupac Amaru, led to the gallows by men of god & dogs of war
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#8
You'd think that the student body elections we had in high school would have taught us something. Only the popular kids won, and then they didn't have any actual power to do anything.
Reply
#9
Tracy Riddle Wrote:You'd think that the student body elections we had in high school would have taught us something. Only the popular kids won, and then they didn't have any actual power to do anything.

Weiner - a perfect specimen of C21st democracy.

A prick who thinks he understands how to appeal to the plebs.


Attached Files
.jpg   Anthony-Weiner-embattled-010.jpg (Size: 23.11 KB / Downloads: 2)
"It means this War was never political at all, the politics was all theatre, all just to keep the people distracted...."
"Proverbs for Paranoids 4: You hide, They seek."
"They are in Love. Fuck the War."

Gravity's Rainbow, Thomas Pynchon

"Ccollanan Pachacamac ricuy auccacunac yahuarniy hichascancuta."
The last words of the last Inka, Tupac Amaru, led to the gallows by men of god & dogs of war
Reply
#10
Jan Klimkowski Wrote:Around the globe there have been allegations of vote-rigging in celebrity contests to ensure that the contestants attracting the largest viewing figures and audience for advertisements are kept in the house / competition / jungle whatever.

As odd as it seems, several years ago I entered into correspondence with the then head of the Serious Fraud Office about one of the vote rigged celebrity contests, at the time hosted by the two cheeky lads who now spend time being cheeky in the Jungle in Australia.

After a careful and lengthy consideration he decided that no action should be taken, even though I was able to demonstrate that fraud, and conspiracy to defraud, had taken place. It was all captured on film for all to see. The evidence was damning, voting decisions reached and written on to prompt cards long before voting had ceased - and all in technicolour.

It's simply wonderful to see plod spring into political and economical non-action when huge TV media were concerned.
The shadow is a moral problem that challenges the whole ego-personality, for no one can become conscious of the shadow without considerable moral effort. To become conscious of it involves recognizing the dark aspects of the personality as present and real. This act is the essential condition for any kind of self-knowledge.
Carl Jung - Aion (1951). CW 9, Part II: P.14
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