Retired Federal Judge Explains Why The FISA Court Should Not Be Trusted
from the secret-courts-do-bad-things dept
Retired federal judge Nancy Gertner, who has appeared in stories here for years (she was the original judge in the Tenenbaum trial, and also spoke out about how US attorney Carmen Ortiz handled the Aaron Swartz case), has now highlighted a very important point about all of the NSA surveillance stories: at the heart of much of it is the secretive FISA court, and that court should not be trusted.As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.The "judges" on the FISA Court are appointed by the Chief Justice of the Supreme Court. And that's it. As we were just discussing, they hear only one side of a case, and their rulings are kept secret. When you have a party that only hears one side of things and never, ever has to be subject to public review or criticism of decisions, take a wild guess what happens? You get a court that is judicially captured, and sides very much with the intelligence infrastructure that it spends most of its time dealing with.
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....
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.
On top of that, there's a very big question: why are these rulings secret? Something like an interpretation of the law should never, ever be considered secret. Yes, it makes sense to keep something secret if it exposes direct information on a specific case that is being worked on, but basic rulings about what the law actually says should never be. But they are, because the FISA court can do that sort of thing. And that's a huge problem. Late last year, we had a post linking to a story by another former judge, Andrew Napolitano, explaining why the entire FISA court was almost certainly unconstitutional:
The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status. The status was that of an agent of a foreign power.... Over time, the requirement of status as a foreign agent was modified to status as a foreign person. This, of course, was an even lesser standard and one rarely rejected by the FISA court.With everything that's been going on, most of the attention has been on the administration -- including both the NSA and the DOJ -- as well as some companies participating in the various surveillance programs. But, increasingly, it seems that perhaps a lot more attention should be paid to the entire concept and structure of the FISA court.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: fisa, fisa court, fisc, judicial capture, nancy gertner, nsa, nsa surveillance, secret courts
Reader Comments
The First Word
“Subscribe: RSS
View by: Time | Thread
[ link to this | view in thread ]
Okay, it's BROKEN. Now how do we fix it?
[ link to this | view in thread ]
Re: Okay, it's BROKEN. Now how do we fix it?
[ link to this | view in thread ]
Re: Okay, it's BROKEN. Now how do we fix it?
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
"Freedom's just another word for nothing left to lose" - Kris Kristofferson
[ link to this | view in thread ]
They killed swartz. They create terrorist attacks. All you have to do is put a firework on the wrong guys doorstep as a child and they WILL make up lies, frame, and torture you.
It's all about who you know, not what really happened.
[ link to this | view in thread ]
Re:
Once you blow the whistle on something like this, you're likely out of a job and quite possibly going to prison, and many people are not willing to make that sacrifice. I'm sure there are people who quietly bring up concerns with their manager and get blown off.
The person quoted in this case is a judge. It would probably be inappropriate for a sitting judge to criticize other sitting judges in this manner.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Okay, it's BROKEN. Now how do we fix it?
In any case how do you get rid of something in the Judicial sphere? Popular pressure? (I'm asking because the US appoints judges differently than here and I'm not familiar with the system)
[ link to this | view in thread ]
Re:
Our country is run by psychopathic monsters because people tolerate it. Personally, I will keep trying to make people aware until I'm dead, which may come in short order.
[ link to this | view in thread ]
I'm glad she recognizes that judges like her would never be appointed to the FISA courts.
The constitutional standard for all search warrants is probable cause of crime. FISA, however, established a new, different and lesser standard -- thus unconstitutional on its face since Congress is bound by, and cannot change, the Constitution -- of probable cause of status.
But these aren't search warrants, since these aren't searches, and probable cause is not the standard. You'd think a judge would know this. Mike I expect to be confused, but not a judge.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Okay, it's BROKEN. Now how do we fix it?
Mike isn't a journalist, but he claims to sometimes "do journalism." Of course, he won't tell us what that means or how we can tell when he's doing journalism and when he's not. But this is TD, so what do you expect?
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?
I honestly don't know. Ask him (he won't answer, but you can ask). Mike is the one that says that he is not a journalist, though he sometimes does journalism. This is his claim, not mine. I truly don't understand it, and it strikes me as the epitome of weasel words.
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?
Is there only two choices in life for an internet blogger?
[ link to this | view in thread ]
Re:
"probable cause is not the standard."
What IS the standard? Reasonable suspicion? They don't even have THAT.
[ link to this | view in thread ]
Re: Re: Re:
Does anyone really think our government would do that to us?
[ link to this | view in thread ]
Re: Re: Re: Re:
Does anyone really think our government would not do that to us?
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?
[ link to this | view in thread ]
does this remind anyone of another type of case where usually only one side is heard and the verdict arrived at is not disputable? exactly! entertainment industries/copyright industries cases!
it says in the article 'You get a court that is judicially captured'. it's exactly the same process when the industries bring a case. the dice are loaded immediately against the defendant, because certain judges only hear what they want to hear from the parties concerned. therefore the verdict is already decided and the 'trial' just a formality. and it's like this in the UK, Sweden, Holland, Denmark and others. the law has been changed to suit the 'crime' and the ones bringing the accusations. in fact, the law has become a non-entity that is only used when a particular party is going to get the 'win'!!
[ link to this | view in thread ]
Re: Re: Okay, it's BROKEN. Now how do we fix it?
[ link to this | view in thread ]
[ link to this | view in thread ]
Judging the judges
Because even judges have to take that pesky oath saying that they'll uphold and defend the Constitution against all enemies foreign and domestic.
As for trusting the FISA court, the nearest approximation of a better description I can come up with is "Kangaroo Court", or even "Star Chamber".
Both serve the same purpose-a one-sided court stacked against the law.
And they're both illegal.
[ link to this | view in thread ]
I know why the pro-copyright trolls are all over the FISA/NSA stuff
But I've figured it out. Universal deep packet inspection is necessary to enforce The Legalistic Troll's view of idea ownership, a.k.a. "Intellectual Property". If Intellectual Monopoly Enforcement can springboard on some other program, all hte better, the cost (to others!) isn't as much of a sticking point, it's already most plaid for. By taxpayers. Also getting a legal basis in for Universal Guilt By Association is a good thing. Keeps legal costs (to Rightsholders/RIAA/MPAA) down.
[ link to this | view in thread ]
Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
A rubber-stamp is even more untrustworthy than he implies.
[ link to this | view in thread ]
Re: I know why the pro-copyright trolls are all over the FISA/NSA stuff
[ link to this | view in thread ]
Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?
"Mummy, Mummy, Tommy called me a bad name and won't give me his bike!"
"Here you go Jimmy, a loaded Bushmaster. Go discuss your Second Amendment privileges with him. Or if you can't be bothered carrying it around, just go punch him in the nose!"
[ link to this | view in thread ]
Re: Re: I know why the pro-copyright trolls are all over the FISA/NSA stuff
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?
[ link to this | view in thread ]
Re:
I was going to say Cardassian.
[ link to this | view in thread ]
[ link to this | view in thread ]
Response to: Anonymous Coward on Jun 17th, 2013 @ 1:05pm
[ link to this | view in thread ]
reality
[ link to this | view in thread ]