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FISA Court secrecy and the NSA

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  • Liberal Democrat
    Democrat
    Colorado Springs, CO
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    New York Times, July 6, 2013: In Secret, Court Vastly Broadens Powers of N.S.A.

    While much of the discussion of the NSA spying has focused on the the role of the Obama administration, there has been less focus on the FISA court itself. So here's some troubling aspects of the court that people are less aware of:

    The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was created by Congress in 1978 as a check against federal government wire tapping abuses. Six years ago, as a result of major changes in legislation for greater judicial oversight of intelligence operations, the FISA court has "quietly become almost a parallel Supreme Court."

    The eleven judges serving on the FISA court serve seven year terms, and are appointed by the Supreme Court Chief Justice. So all eleven members serving on the FISA court have been hand picked by Justice John Roberts with no legislative reviews...no oversight by anyone. It is his decision alone. It should be noted that 10 of the 11 are Republicans. Furthermore, as per the NYT,

    "Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court."

    Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, is troubled by the idea that the "court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. “That whole notion is missing in this process.”

    Read more details at the NYT article above, but if you want another well articulated analysis, Ezra Klein, filling in for Rachel Maddow yesterday had much to say about how the FISA court is making its own law. I highly recommend watching Ezra Klein's view of this...Klein's describes it as "shocking."

    MSNBC, Rachel Maddow show: How FISA secret court makes it's own law
  • Independent
    Ft.myers, FL
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    Schmidt Wrote: New York Times, July 6, 2013: In Secret, Court Vastly Broadens Powers of N.S.A.

    While much of the discussion of the NSA spying has focused on the the role of the Obama administration, there has been less focus on the FISA court itself. So here's some troubling aspects of the court that people are less aware of:

    The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was created by Congress in 1978 as a check against federal government wire tapping abuses. Six years ago, as a result of major changes in legislation for greater judicial oversight of intelligence operations, the FISA court has "quietly become almost a parallel Supreme Court."

    The eleven judges serving on the FISA court serve seven year terms, and are appointed by the Supreme Court Chief Justice. So all eleven members serving on the FISA court have been hand picked by Justice John Roberts with no legislative reviews...no oversight buy anyone. It is his decision alone. It should be noted that 10 of the 11 are Republicans. Furthermore, as per the NYT,

    "Unlike the Supreme Court, the FISA court hears from only one side in the case — the government — and its findings are almost never made public. A Court of Review is empaneled to hear appeals, but that is known to have happened only a handful of times in the court’s history, and no case has ever been taken to the Supreme Court. Most hail from districts outside the capital and come in rotating shifts to hear surveillance applications; a single judge signs most surveillance orders, which totaled nearly 1,800 last year. None of the requests from the intelligence agencies was denied, according to the court."

    Geoffrey R. Stone, a professor of constitutional law at the University of Chicago, is troubled by the idea that the "court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system. “That whole notion is missing in this process.”

    Read more details at the NYT article above, but if you want another well articulated analysis, Ezra Klein, filling in for Rachel Maddow yesterday had much to say about how the FISA court is making its own law. I highly recommend watching Ezra Klein's view of this...Klein's describes it as "shocking."

    MSNBC, Rachel Maddow show: How FISA secret court makes it's own law
    Yeah; is this only the top of the iceberg? What else does the public not know? Can we still call this country a democracy? I've got the answer!!
    It is run by a whole bunch of corrupt lobbyists as well as a bunch of Republicans with only a one track vision,which is on how we can screw the people so we ( Republicans) can get rich faster via our own lawyers and like you said as well a fake FISA court system. What is the matter with this country? Is Obama sound asleep? Indeed there must be more "shocking" things which are hidden, ask Snowdon!!!
  • Liberal Democrat
    Democrat
    Colorado Springs, CO
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    Dutch --

    You make some scathing attacks on our democracy, and I agree with you as it pertains to lobbyists and Republicans. But when you add "Is Obama sound asleep?" I don't follow what you are getting at. Are you suggesting that Obama is ignorant of the make up and function of the FISA court? I doubt that. The FISA law and court was set up by Congress including both Democrats and Republicans, and the process of selecting justices for that court has been the prerogative of the Chief Justice of the Supreme Court since 1979. Ted Kennedy was the chief sponsor of the legislation and Jimmy Carter signed it into law.

    What has changed, however, is that the FISA court has slowly started interpreting and making law beyond their original charge as was intended by both Kennedy and Carter...I think the term is "overreach." However, even those rulings have been sanctioned by the respective committees in both houses of Congress.

    A major flaw in that FISA legislation, however, was to give the power of appointment to the Chief Justice of the Supreme Court. Before Roberts, Chief Justice William Rehnquist filled the seats in the FISA court. Rehnquist as you know was appointed to the Supreme Court by Nixon and became Chief Justice when Ronald Reagan elevated him.

    And before Rehnquist, Warren Burger was the Chief Justice, another Nixon appointment. So ever since the FISA court was created in 1978, the job of filling vacancies has fallen to the Nixon, Reagan, and Bush nominated Supreme Court Chief justices. And not surprisingly, the FISA court is filled with conservative think alike justices that last year approved nearly 1,800 surveillance orders and turned down none, although some were modified.

    On the question of transparency, how much does the public need to know about each and every 1,800 surveillance order that was approved by the FISA court? When these requests pertain to national security I don't think the American public thinks they need to know. However, there is suspicion that out of some trillion phone calls and e-mails made each year that some government hack might be listening into a sordid conversation between two adults...that's Nixonian if you like...or maybe more like Ken Starr tactics. But Barack Obama? I think not.

    The transparency that Obama speaks of is the monitoring and sanctioning of the surveillance efforts by select secret committees in Congress. It is not a "tell all" for cable news consumption.

    President Obama does not have the power to change the make-up or the secretive processes of the FISA court. Only Congress can do that. And I don't see a lot of energy to change things in Congress. Rep. Steve Cohen (D-Tenn.) has proposed the FISA Court Accountability Act, which would change the way FISA court judges are selected. He could not find a single co-sponsor. Until that happens, look for FISA to approve nearly every surveillance request...it's what those conservative Republicans in the FISA court do...and think.
  • Liberal Democrat
    Democrat
    Colorado Springs, CO
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    Note to Guy Dwyer --

    The FISA court stacked with conservative Republican "think a like" justices is just another example of the conspiratorial activities you highlighted in the article ALEC and the Federalist Society.
  • Independent
    Ft.myers, FL
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    Schmidt Wrote: Dutch --

    You make some scathing attacks on our democracy, and I agree with you as it pertains to lobbyists and Republicans. But when you add "Is Obama sound asleep?" I don't follow what you are getting at. Are you suggesting that Obama is ignorant of the make up and function of the FISA court? I doubt that. The FISA law and court was set up by Congress including both Democrats and Republicans, and the process of selecting justices for that court has been the prerogative of the Chief Justice of the Supreme Court since 1979. Ted Kennedy was the chief sponsor of the legislation and Jimmy Carter signed it into law.

    What has changed, however, is that the FISA court has slowly started interpreting and making law beyond their original charge as was intended by both Kennedy and Carter...I think the term is "overreach." However, even those rulings have been sanctioned by the respective committees in both houses of Congress.

    A major flaw in that FISA legislation, however, was to give the power of appointment to the Chief Justice of the Supreme Court. Before Roberts, Chief Justice William Rehnquist filled the seats in the FISA court. Rehnquist as you know was appointed to the Supreme Court by Nixon and became Chief Justice when Ronald Reagan elevated him.

    And before Rehnquist, Warren Burger was the Chief Justice, another Nixon appointment. So ever since the FISA court was created in 1978, the job of filling vacancies has fallen to the Nixon, Reagan, and Bush nominated Supreme Court Chief justices. And not surprisingly, the FISA court is filled with conservative think alike justices that last year approved nearly 1,800 surveillance orders and turned down none, although some were modified.

    On the question of transparency, how much does the public need to know about each and every 1,800 surveillance order that was approved by the FISA court? When these requests pertain to national security I don't think the American public thinks they need to know. However, there is suspicion that out of some trillion phone calls and e-mails made each year that some government hack might be listening into a sordid conversation between two adults...that's Nixonian if you like...or maybe more like Ken Starr tactics. But Barack Obama? I think not.

    The transparency that Obama speaks of is the monitoring and sanctioning of the surveillance efforts by select secret committees in Congress. It is not a "tell all" for cable news consumption.

    President Obama does not have the power to change the make-up or the secretive processes of the FISA court. Only Congress can do that. And I don't see a lot of energy to change things in Congress. Rep. Steve Cohen (D-Tenn.) has proposed the FISA Court Accountability Act, which would change the way FISA court judges are selected. He could not find a single co-sponsor. Until that happens, look for FISA to approve nearly every surveillance request...it's what those conservative Republicans in the FISA court do...and think.
    "Schmidt" thanks for your explanation; the only thing is a question to you: if you would not find this so serious, why post this? What I meant with Obama being asleep is quite simple, you don't seem to be asleep, and are upset by it, why not him. In other words why let them (Republicans) undermine the system as it should be.
  • Liberal Democrat
    Democrat
    Colorado Springs, CO
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    Dutch --

    There are a lot of things that bother me about the way our government functions...or does not function. President Obama is often the convenient whipping post for both conservatives and liberals, but much of the criticism is misdirected. John Boehner's House of Representatives is the best example of a dysfunctional part of our government right now, largely due to the obstructionism of the Tea Party. It wasn't that way under Nancy Pelosi, and I hope one day Nancy Pelosi holds the Speaker's gavel once again. Mitch McConnell's obstructionism in the Senate also renders this group largely dysfunctional.

    And the Supreme Court's Citizens United ruling and the rollback of an important part of the Civil Rights Act...and their infamous Bush v Gore decision of 2000 are decisions that cast a negative light on that court.

    With respect to the FISA Court discussion, neither the NYT article or Ezra Klein's segment, pointed the finger at President Obama. The place to fix that problem is in Congress, but something like this, that is so lopsided in the Republican's favor, is unlikely to get any traction with this Congress to fix. Should President Obama be "visibly" upset and have a public spectacle in front of cameras to show his discomfort with the way the court is behaving? As you know that's not his style...yes he did that on gun safety legislation and a few other key pieces of proposed legislation, but he picks his battles carefully, and this is one that the Republicans are unlikely to yield even an inch.

    Nevertheless, I agree that the New York Times, the Wall Street Journal, Ezra Klein and others should inform the public and raise alarms. I'll do my part to spread the word in this website. My criticism on this issue is directed at Congress and the Republicans, not President Obama. I am not against the FISA court as such...just the way it is stacked by Roberts with his cronies, and how it is really immune from any dissenting body of opinion. That can easily be fixed by Congress if they choose to do so.
  • Strongly Liberal
    Independent
    Seattle, WA
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    Schmidt Wrote: Note to Guy Dwyer --

    The FISA court stacked with conservative Republican "think a like" justices is just another example of the conspiratorial activities you highlighted in the article ALEC and the Federalist Society.
    I agree, and thanks for posting all that information.

    That information is disheartening, because while I had thought that Bush was the problem by ignoring the FISA requirement for warrants, and that at least Obama was following the law, it apparently doesn't make much difference.

    I remember when in 2005 Bush was forced to admit that he had ordered government agents in the National Security Agency (NSA) to tap the phones of American citizens without necessary court approval required by FISA legislation. Bush knew the FISA law has a provision that in the case of dire emergencies a wiretap could be performed and the court could be notified afterward to provide a proper check to ensure compliance with laws, and he even got the FISA law amended to allow him wait 72 hours after a wiretap to notify the court, rather than the 24 hours that the law had stipulated. But Bush simply ordered the NSA to wiretap and eavesdrop on whoever they wanted, at any time, without any court oversight whatsoever -- which is rather odd considering that he probably could have gotten a warrant for anything he wanted to do.

    Now, I suppose, it is at least better in the sense that Obama probably complies with the law and at least has the NSA obtain warrants. But considering facts that the NYT and you have brought to light, it seems that we need to try to get legislators to restore the original intent of the FISA court, and, rather than have its members be chosen by a partisan individual, have a bipartisan committee select candidates for Congress and the president to approve.

    But, then we run into the same problem, of course, with Congress divided and in conflict, and right-wing politicians playing dirty to get their way.

    Oh, woe is me. I'd better go play my guitar and get in a better mood.
    .