Rubberstamping FISA court can't be expected to actually oversee surveillance


#1

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#2

People need to be fired in mass. This independent court nonsense is not working. The whole public sector needs a big purge.


#3

I quite agree, fire all 11 judges and get some who understand the constitution.


#4

Look, the job those judges do IS hard! They have to put a lot of thought into what they are doing.

Do you use a self-inking rubber stamp, or one that uses an ink pad?
What colour ink to use?
Do you use the 'Approved" stamp, or the 'Authourized' stamp?
Does the rubber stamp fit the ink pad and the space on the paper?

As you can see, it is a job that is complicated and difficult to do.


#5

Am I misunderstanding this or are they saying that asking them to do their job would make doing their job too difficult?


#6

That would appear to be the case. They seem to be saying that they were hired to appear to be working, not actually working.


#7

If the regular courts can delay civil rights cases for 9 or 10 years, why can't this court delay civil rights abuses for 9 or 10 years? I'm sure a slower pace would reduce the workload and would reduce the risk of the court being pressured to approve further unconstitutional activity.


#8

People who understand the Constitution know that these federal judges, appointed under Article III of the constitution, cannot be fired.

It might also help to note that the FISC judges have day jobs as ordinary District Court judges, and the judge who wrote the letter is a judge for the District of DC. There is no standalone FISA court with dedicated judges who do nothing but FISC work.

It would also help to note that most of what the FISC does is grant warrants. In the normal, non-FISA context, warrants are granted under ex-parte proceedings with only the government being represented. There is no public advocate, and warrant hearings are not adversarial in nature. Almost all normal warrants are also approved, making normal courts rubber-stamps in the warrant context.

This isn't to say there aren't problems in the system, but it is ridiculously disingenuous to present the issue the way Masnick has.


#9

Federal judges, are merely a very specialized sub-species of "Poltiicus americanus". They are, almost universally politicians in robes who lusted after, and obtained, a low work, high pay, no heavy lifting indoor job. All these cases ' be tried by juries, Yes, juries can be packed but the courts are already packed with 'bipartisan' [if you are approved by both US parties, you become doubly suspect] support. IF not 12 person juries then lay judges that out number the professional hacks on the bench.


#10

So you're saying the FISA court is merely a secret regular court, doing nothing that regular courts couldn't do except for the secrecy. If that were the case we could do away with the FISC because regular courts normally seal proceedings for a variety of reasons. Great news.

The only problem is that you're wrong. The FISA court is charged with oversight and approval of foreign intelligence gathering practices and actions of the NSA, and other intelligence organizations within the federal government. They don't just approve warrants by any stretch of the imagination. And this court, unlike other courts, was created in response to, and with the mission of curbing, wide-ranging criminal abuses in intelligence gathering. And also unlike other courts, the judges on this court are all appointed by a single person -- the chief judge of the Supreme Court of the US. So its different from other federal courts in how it is comprised, its focus and its mission. In other words, its completely different.

Oh, and judges can be fired. I don't think its called that but its essentially the same thing -- they can be removed for gross misconduct, corruption or criminal acts.

You get an A for confident assertion though.


#11

Where did I say that? Where did I say they do nothing regular courts don't do? Where did I talk about sealing proceedings? All I did is observe that the regular courts issue warrants in an ex parte setting with at rates that would also make them rubber stamps.

I see. I'm wrong about things I've never said. That's good to know.

You'll also note that I said that "most of what the FISC does is grant warrants," not that this is the only thing it does. It also does other things like review appeals, but the tech-dirt piece seems clearly targeted at warrants since you rubber stamp applications, and not controversies. But if you think that most of what the FISC does is not related to granting warrants, what do you think it does, and how do you think these matters are brought before them?

Thanks. Article III judges can be removed via impeachment (which is entirely different from firing someone, since people can be fired for pretty much any reason), for as Chief Justice John Roberts can be removed, but you'll note that tech-dirt calls Roberts "a single guy appointed to a lifetime position." You should leave a comment there telling him that Roberts can indeed be fired. And hey, if we're adopting your impeachment=firing standard, by that measure Presidents can be fired, too.

A for confidence, indeed.


#12

In this case, I expect that the judges on this special court can be dismissed from serving on the court at any time for any or no reason, as it's a special court, convened for a special purpose, as opposed to traditional courts that have their nominees selected by the executive branch and confirmed by the legislative branch. Those judges dismissed from these duties would not be dismissed from their circuit court work, they'd just lose their "other duties as assigned".

Unfortunately because the rulings are secret, one cannot challenge the validity of warrants issued by the court. While it's certainly quite a burden to challenge a warrant in normal circumstances it is not impossible. Even warrants for conventional legal wiretapping have been successfully challenged and evidence collected in those cases has been ruled inadmissible, and sometimes even further discovery based on the now-inadmissible evidence has also been ruled inadmissible. A secret warrant might be impossible to challenge, along with the 'fruit' that it bore. Given that the surveillance isn't narrow in scope and that data retention is for a fairly lengthy duration, data collected by one administration that doesn't seek to use it for conventional purposes could be used by a following administration that does decide to be "tough on crime" and to use data for purposes that it wasn't originally gathered for.

It's a travesty that the Judiciary isn't taking the approach needed to be truly independent like they're supposed to be.


#13

Your entire comment relies on the assertion of similarity between the FISA court and district court; and that district court judges sit on the FISC. This alleged similarity is the basis for your rather vague accusation:

Your conceit, that Masnick is being disingenuous by presenting the ex parte functions of the FISA court as substantially different from what goes on in a regular district court, attempts to isolate the issue from its context, and from the abuses that have occurred as a direct result of that context. The fact that its a secret court nullifies any attempt to equate the FISC with, e.g., the Southern District of New York.

Sure district courts hear warrant applications in ex parte fashion. But their proceedings are generally public and are verifiable, at least at some point once an action has been started (grand juries may have sealed proceedings, at least until arrests are made). That's why the people don't need an advocate at the proceedings: because their advocate will get to review the warrant for legality and challenge it during the rest of the proceedings (i.e., the trial). There is no trial in FISA court. There is no review. We all get spied on with no recourse to the law. Secret law is not law. Its an oxymoron. Law by its very nature is public and political. As we have seen, the FISA court reliably approves almost everything the NSA throws at them, letting abuses continue for years, perhaps occasionally protesting, all in secret of course, and with no discernible effect on the NSA's privacy efforts. This brief glimpse we are getting of the FISA court's inner workings is unprecedented, and clearly proves that a secret court is no court at all. Think about it: what prosecutor in district court would be reprimanded and ordered to change an abusive or corrupt behavior, only to have the prosecutor ignore them and continue on with the same behaviors, year after year.

An even better analogy: imagine a prosecutor who is refused a warrant, but tells the police to make the search anyway. That case will be thrown out before trial for an illegal search. If the FISA court denies a warrant who can tell whether the NSA is even complying?


#14

My comments about FISC judges being Article III judges came in response to a suggestion we simply fire them. (And although we could Constitutionally remove them from FISC without removing them from the federal bench, this would require rewriting the relevant Patriot Act provisions, as they are currently appointed to 7-year terms.)

I then observed that because they are also district judges they also have other duties (which helps explain their concerns about workload), and noted that there were similarities between FISA warrants and regular search warrants which are also rubber stamped. I think that noting these points would aid in understanding the issue.

Search warrant applications are not in open court. Warrants only become challengable if/when the government decides to use the fruits of those warrants in a law-enforcement (as opposed to intelligence) proceeding. If they do not do this, there is no real remedy, with the result that there are plenty of search warrant violations that never even become challengable. Even when it is possible to challenge a warrant, it is still difficult to meet the burden of showing the warrant should not have been granted, as granted warrants are presumptively valid. Heck, I think we're all familiar with scenes in police procedurals where law-enforcement officers massage their warrant applications and apply to easier judges... and somehow these dubious warrants virtually never come back to bite the prosecutors in the ass.

This is less clear to me. Yes, the number of warrants that have been absolutely declined is small. It's difficult to compare rejection rates to regular courts because regular courts don't keep records, but I would be surprised if many regular warrants are ever completely rejected. Problematic warrants are more likely to be re-drafted in order to meet the judge's standards, and prior FISC judges have said that they have required up to 25% of warrant applications to be redrafted in order to be acceptable. There is also the category of warrant applications that are voluntarily withdrawn.

Actually I have found some data from Article III courts regarding wiretap warrants. In the 11 years from 2002-2012, only 7 warrants out of 23,925 were denied. In the face of this, are you going to claim that Article III courts are less of a rubber stamp?

How is this a better analogy? Has this happened in the FISA context? Is the NSA bringing law enforcement actions? And are you sure the case will be thrown out, instead of simply having the evidence excluded?

Masnick hasn't really presented how he would like FISA warrant to work, other than to attack the ex parte nature of them. But all warrants are ex parte for good reasons: you don't want to tip off the parties who are going to be searched/surveilled, and you don't want to have to disclose to them what you know about them. At a minimum you would need a specialized bar of attorneys allowed to hear the most classified information and sworn to secrecy (including from their clients), which would prevent them from being truly adversarial and likely lead to either capture by the court or accusations thereof. And, as the judge has pointed out in the last section that Masnick quotes, FISC decisions would have to be heavily redacted if they were released, and this redaction would impair the ability of the public to fully understand what's going on. There are legitimate reasons for secrecy (just are there are legitimate reasons for additional transparency and freedom from surveillance), and unless you are willing to actually address and acknowledge those concerns it's going to be difficult to make any headway.


#15

Is Ron Swanson on the the FISA court? Useless fucks.


#16

And this is the fundamental problem. I believe we are long over due for a constitutional reform. Unfortunately, this congress is completely bankrupt of ethics and responsibility.

On the other hand, the judges could be removed by some quasi constitutional means. You know, like the same way the military and NSA have suspend the constitution. I especially like to hear "But that's against the constitution!" from the same people that work to destroy it. While it's broken let fix some things.


#17

Have secret, non-adversarial courts ever been effective?


#18

It depends how you define 'effective'.


#19

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