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| NSA MARYLAND |
Who’s In Charge Of The FISA Court? John Roberts, And Apparently Just John Roberts
When it comes to the Foreign Intelligence Surveillance Court, which isn’t so much a Court unto itself as it is a rotating group of Federal Judges appointed to hear warrant requests and other matter designated as appropriate for secret proceedings under the Foreign Intelligence Surveillance Act, there’s nobody more powerful than Chief Justice John Roberts:
The 11 FISA judges, chosen from throughout the federal bench for seven-year terms, are all appointed by the chief justice. In fact, every FISA judge currently serving was appointed by Roberts, who will continue making such appointments until he retires or dies. FISA judges don’t need confirmation — by Congress or anyone else. >> No other part of U.S. law works this way. The chief justice can’t choose the judges who rule on health law, or preside over labor cases, or decide software patents. But when it comes to surveillance, the composition of the bench is entirely in his hands, and, as a result, so is the extent to which the National Security Agency and the Federal Bureau of Investigation can spy on citizens. >> “It really is up to these FISA judges to decide what the law means and what the NSA and FBI gets to do,” said Julian Sanchez, a privacy scholar at the Cato Institute. “So Roberts is single-handedly choosing the people who get to decide how much surveillance we’re subject to.”One some level, I suppose this makes sense. Like James Joyner, I accept the general idea of the need for a Court that conducts secret, or to use the precise legal terminology sealed, proceedings when dealing with matters as potentially sensitive as requests from law enforcement to conduct surveillance on people who may be agents of foreign governments or involved with foreign terrorist elements. Because all warrant requests in a normal Federal District Court are matters of public record, it would simply be impractical and unwise for those matters to be easily accessible on the public record in a manner that could potentially tip off targets of an investigation. Indeed, even in these courts there are procedures that allow law enforcement to keep their warrant requests, Criminal Complaints, and even Grand Jury Indictments under seal until its felt advisable to make them public. That works in the odd case here and there, but it’s easy to see how things could fall through the cracks if FISA cases were all processed through a non-FISA Court.
It’s also easy to see how it is that the
Chief Justice ended up being the person responsible for staffing the
FISA Court itself.. In addition to heading the Supreme Court, Roberts,
whose official title is Chief Justice of the United States, sits at the
top of the entire Federal Judiciary. The Court’s administrative arm
reports directly to him, for example, and he directly involved in the
preparation and presentation of the Judiciary Department’s budget
request to Congress each year, among other administrative
responsibilities. When the FISA law was adopted in 1978, Congress no
doubt saw the idea of the Chief Justice making these appointments, from
among a group of Federal Judges who had already been confirmed to
lifetime appointments by the Senate, as the best and most efficient
manner in which to staff the Court. Ezra Klein, though, sees a danger of group think setting in:
Roberts’s nominations to the FISA court are almost exclusively Republican. One of his first appointees, for instance, was Federal District Judge Roger Vinson of Florida, who not only struck down the Affordable Care Act’s individual mandate but the rest of the law, too. (The Supreme Court disagreed.) Vinson’s term expired in May, but the partisan tilt on the court continues: Only one of the 11 members is a Democrat. >> Critics contend the FISA court is too compromised to conduct genuine oversight. It meets in secret, and the presiding judge hears only the government’s argument before issuing a decision that can’t be appealed or even reviewed by the public. “Like any other group that meets in secret behind closed doors with only one constituency appearing before them, they’re subject to capture and bias,” said Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program. >> A Reuters investigation found that from 2001 to 2012, FISA judges approved 20,909 surveillance and property search warrants while rejecting only 10. Almost 1,000 of the approved requests required modification, and 26 were withdrawn by the government before a ruling. That’s a startling win rate for the government. >> (…) >> The FISA court is composed of federal judges. All are appointed by the same man. All but one hail from the same political party. And unlike judges in normal courts, FISA judges don’t hear opposing testimony or feel pressure from colleagues or the public to moderate their rulings. Under these circumstances, group polarization is almost a certainty. “There’s the real possibility that these judges become more extreme over time, even when they had only a mild bias to begin with,” Cato’s Sanchez said. >> Just as the likelihood of polarization in the FISA court is more pronounced than in normal courts, the stakes are also higher. If trial judges are unduly biased, their rulings can be overturned on appeal. But FISA judges decide the momentous questions of whom the government may spy on and how. Their power is awesome, and their word is final. As the great legal scholar Kanye West said, no one man should have all that power.To be fair, there are explanations other than partisanship that likely account for the largely Republican makeup of FISA Judges under Roberts tenure today. Judging from this list of recent Judges on the Court, it seems quite apparent that there is a bias toward appointing older and more experienced Judges to this Court. For example, Judge Vinson, who Klein specifically mentions in the quote above, was appointed to the Court in 2006, his 23rd year on the Federal Bench. Former members of the FISA Court Judge Thomas Hogan and Judge Claude Hilton were also appointed well into the second decade of their time on the bench. There are understandable reasons why this would be the case. Given the sensitive and complicated nature of the cases that FISA Judges it’s not at all surprising that Roberts’ selections for this assignment would be drawn from more senior members of the Judiciary and, right now, that is primarily made up of judges appointed between 1981 and 1989 by Presidents Reagan and George H.W Bush. So, it’s likely less a conspiracy or blatant partisanship than it is a pure accident of history. The seven year length of service on the FISA Court also contributes to this to some extent. Give it 5-10 years and we’ll start seeing Judges appointed by President Clinton appointed to FISA assignments.
Leaving that aside, though, Klein does make some good points. The secret and one-sided nature of the Court’s proceedings make it likely that FISA Judges are likely to be biased toward the government, but I’d be interested to see whether there’s really that much of a difference between FISA proceedings and those in a normal Federal District Court. When law enforcement applies for a warrant to a U.S. District Court Judge, they don’t give notice to the party they are seeking to execute it against, or any third parties that may be impacted by it. The difference, of course, is that the applications are generally public and can be subjected to further review. Nonetheless, it’s largely the case that Judges grant warrant requests far more than they grant them (though admittedly not with the “success” rate of the FISA Court) so I’m not sure it’s correct to single out the FISA Court, or the fact that the Judges on it are all appointed by one man. http://www.outsidethebeltway.com/whos-in-charge-of-the-fisa-court-john-roberts-and-apparently-just-john-roberts/
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| DIANE FEINSTEIN NSA |
America's Surveillance Society
By Stephen
Lendman
7-18-13
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It's
not new. It's longstanding. State-of-the-art technology makes it easy.
It's more intrusive than ever. It's lawlessly out-of-control.
On July 6, The New York Times Times headlined "In Secret, Court Vastly Broadens Powers of NSA,"
saying:
More than a dozen Foreign Intelligence Surveillance Court (FISC) "classified
rulings created a secret body of law giving the (NSA) power to amass
vast collections of data on Americans while (allegedly) pursuing not
only terrorism suspects, but also people possibly involved in nuclear
proliferation, espionage, and cyberattacks, officials say."
More on this below. Spying is the national pastime. Legal standards
no longer apply. Anything goes is policy.
America's a total surveillance
society. Big Brother more than ever is real.
It's "time to rein in the surveillance state," said ACLU.
It "strikes at the core of our right to free speech, association
and privacy."
On June 10, ACLU filed a motion with the FISA court. It seeks release
of secret opinions. People have a right to know. They lawlessly authorize
"mass acquisition of phone records."
On June 11, ACLU sued. It's "challenging the constitutionality
of the phone tracking program." Fundamental rights are threatened.
They're fast disappearing.
Far more than NSA spying is involved. More on what the NYT reported
below. America has 16 known spy agencies. FBI counterterrorism/
Operations are secret. Unconscionable abuses are committed. Innocent
victims are targeted. Enormous harm persists. It does with no oversight,
Infiltrate, disrupt, sabotage, and destroy tactics are used. Activism
is criminalized. So is being Muslim in America at the wrong time.
ACLU's Matthew Harwood said the Agency's "become a domestic intelligence
agency with unprecedented power to peer into the lives of ordinary Americans
and secretly amass data about people not suspected of any wrongdoing."
Post-9/11, ACLU learned about outrageous FBI abuses. They include
"domestic spying, racial and religious profiling, biased counterterrorism
training materials, politically motivated investigations, abusive detention
and interrogation practices, and misuse of the No-Fly List to recruit
informants."
An ACLU fact sheet discusses "The Ten Most Disturbing Things You Should Know About
the FBI Since 9/11."
(1) Patriot Act abuses include:
. so-called "exigent letters" to track US phone calls;
. email monitoring;
. national security letters for records, financial information,
and other personal information without prior court permission for any
reason or none at all; and
. other ongoing intrusive/extrajudicial FBI practices with no
oversight.
(2) 2008 amendments to Attorney General guidelines:
Bush AG Michael Mukasey "re-wrote the FBI's rulebook." He
gave FBI agents "unfettered authority to investigate" without
probable cause.
He created a "new kind of intrusive investigation." It's
called an "assessment." It requires no "factual predicate."
FBI agents have sweeping unchecked powers. They use them extrajudicially.
They use them abusively. They search "government or commercial
databases, conduct overt or covert FBI interviews, and task informants
to gather information about people or infiltrate lawful organizations."
Thousands of innocent victims are ruthlessly targeted. Anything goes
is policy.
(3) Racial and ethnic mapping:
Mukasey's guidelines authorized "domain management assessments."
They let FBI operatives map US communities by race and ethnicity.
It's done based on "crass stereotypes about the crimes they are
likely to commit." Doing so reflects racial, ethnic and religious
bias.
(4) Unrestrained data collection and meta-mining:
Billions of records are lawlessly collected. The FBI "refused
to give the Government Accountability Office access." Like NSA,
it's an out-of-control rogue agency. So is CIA and other US spy operations.
(5) Suppressing internal dissent: Waging war on whistleblowers:
The 1989 Whistleblower Protection Act (WPA) protects federal employees
who report misconduct. Federal agencies are prohibited from retaliating
against those who do so.
Whistleblowers may report law or regulatory violations, gross mismanagement,
waste, fraud and/or abuse, or acts endangering public health or safety.
The FBI's exempt from WPA provisions. It doesn't protect whistleblowers.
It targets them. It does so ruthlessly. Exposing government wrongdoing
is hazardous.
(6) Targeting journalists:
AP, Fox News and others were monitored lawlessly. It's virtually certain
that numerous other journalists are now. Doing so chills press freedom.
It stifles investigative reporting. It makes whistleblowers reluctant
to come forward.
(7) Thwarting congressional oversight:
The FBI stonewalls. It withholds vital information. It limits or delays
requests to provide it. False and misleading information is provided
other times.
(8) Targeting First Amendment activity:
ACLU FOIA requests obtained "significant evidence." It showed
FBI agents used "expanded authorities to target individuals and
organizations because of their participation in First Amendment-protected
activities."
Doing the right thing is dangerous. Advocacy groups are targeted.
Muslims are especially threatened.
(9) Proxy detentions:
FBI operations are increasingly outside America. It's authority abroad
is unclear. Its activities are hard to monitor.
Troubling cases occur. Foreign governments are pressured to arrest
and detain US citizens. Often it's done without charge. Lawless interrogations
and torture follow. These practices persist.
(1) No Fly List used to pressure Americans abroad to become informants:
Since 2009, no fly list numbers doubled. Innocent people are harmed.
Due process rights are denied. Often Americans learn when they're abroad.
Away, vulnerable, and unable to fly home forces compliance. This type
behavior is unconstitutional. Thirteen plaintiffs ACLU represents aren't
criminally charged. They're not told why they can't fly. They're
denied a way to challenge their right to do so.
The Times addressed NSA's power to collect vast amounts of data. It's
done extrajudicially. FISC rulings show the court's more expansive role.
It operates "with almost no public scrutiny."
It does so extrajudicially. It handles government monitoring requests.
It's rubber stamp. It approves virtually all warrant requests.
Eleven US district court judges serve staggered terms up to seven
years. They’re chosen from at least seven judicial circuits. Supreme
Court Justice John Roberts selects them.
The process reflects police state justice. Legislative changes created
an "almost parallel Supreme Court." It's the "ultimate
arbiter on surveillance issues."
Its rulings involve troublesome intelligence collection practices.
They persist unchecked. An unnamed former intelligence official said:
"We've seen a growing body of law from the court. What you have
is a common law that develops where the court is issuing orders involving
particular types of surveillance, particular types of targets."
Terrorism was reinterpreted. Definitions expanded. FISC judges adopted
a legal principle called "special needs."
Doing so circumvents Fourth Amendment protections. Extrajudicial warrantless
searches persist.
"(W)holesale collection of communications in pursuit of (alleged)
terrorism suspects" reflects America acting lawlessly.
Anything goes is policy. Constitutional rights are denied. Probable
cause isn't required. Warrants no longer are needed. Suspicions without
evidence suffice.
Court rulings let NSA and other spy agencies do whatever they want.
So-called "foreign intelligence" is broadly defined. It's
whatever authorities say it is.
FISC is a virtual kangaroo court. It "hears from only one side
in" cases - the government. It does so secretly.
Its findings are virtually never revealed. A Court of Review exists.
It's empaneled to hear appeals. Throughout FISC's history, it happened
"only a handful of times."
No case ever went to the Supreme Court. FISC's been around for 35
years. I heard thousands of cases. A single judge signs most surveillance
orders. None from intelligence agencies are denied.
"(O)ne central concept connects" most court opinions. Meta-data
collection, it's claimed, doesn't violate Fourth Amendment protections.
It's permitted as long as authorities claim "valid" national
security reasons.
This type justification stretches legal standards beyond reason. It
twists them to serve policy. It does so lawlessly. It permits anything
goes. It reflects police state justice.
"This concept is rooted partly in the 'special needs' provision
the court has embraced." They're whatever authorities say they
are.
Constitutional Law Professor Geoffrey Stone is troubled. A system
letting FISC judges create law based on what government alone says has
no place in free societies, he believes.
It denies an adversarial judicial system. "That whole notion
is missing in this process," he stresses.
FISC judges are rubber stamp. Challenging them is virtually impossible.
So is any chance for justice.
Post-9/11 intelligence gathering expanded exponentially. It did so
extrajudicially. Secrecy more than ever is enforced.
Civil libertarians are denied access to what everyone needs to know.
Snowden's revelations are hugely important. They reflect sunshine where
it needs to go.
America's a virtual police state. Things go from bad to worse. Everyone
needs to know so they understand. Freedom's too precious to lose. It's
disappearing unless people act to save it. There's no other way.
Stephen Lendman lives in Chicago. He can be reached at lendmanstephen@sbcglobal.net.
His new book is titled "Banker Occupation: Waging Financial War
on Humanity."
Visit his blog site at sjlendman.blogspot.com.
Listen to cutting-edge discussions with distinguished guests on the
Progressive Radio News Hour on the Progressive Radio Network.
It airs Fridays at 10AM US Central time and Saturdays and Sundays
at noon. All programs are archived for easy listening.
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