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.

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.
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.

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.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Anonymous Coward, Jun 17th, 2013 @ 12:32pm

    Trust is a two way street, if the government doesn't trust its own people, why should the people trust the government?

     

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    identicon
    out_of_the_blue, Jun 17th, 2013 @ 12:35pm

    Okay, it's BROKEN. Now how do we fix it?

    Your time to shine, college boy! Got a SINGLE idea you want implemented? Or are you just masnicking this story?

     

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    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 12:37pm

      Re: Okay, it's BROKEN. Now how do we fix it?

      Journalists are here to report. It's not their job to fix the country.

       

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        identicon
        Anonymous Coward, Jun 17th, 2013 @ 1:08pm

        Re: Re: Okay, it's BROKEN. Now how do we fix it?

        Journalists are here to report. It's not their job to fix the country.

        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?

         

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          Anonymous Coward, Jun 17th, 2013 @ 1:16pm

          Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?

          He reports on stories, he links to his sources...what's not journalism about it?

           

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            identicon
            Anonymous Coward, Jun 17th, 2013 @ 1:22pm

            Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?

            He reports on stories, he links to his sources...what's not journalism about 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.

             

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              identicon
              Anonymous Coward, Jun 17th, 2013 @ 1:27pm

              Re: Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?

              So the man says he isn't a Journalist, so he must be the fixer of the world?

              Is there only two choices in life for an internet blogger?

               

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              slinkySlim, Jun 17th, 2013 @ 1:48pm

              Re: Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?

              Hey, chief, what's your upside anyway? You're certainly not teaching me anything and your contribution is .... shall we say slightly south of thought provoking. You're kind of like a pit pull with no teeth guarding a well with no water.

               

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      Mike Masnick (profile), Jun 17th, 2013 @ 12:43pm

      Re: Okay, it's BROKEN. Now how do we fix it?

      Seems like getting rid of a secret court would be step one. If specific information needs to be filed under seal, then allow that.

       

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        Ninja (profile), Jun 17th, 2013 @ 12:57pm

        Re: Re: Okay, it's BROKEN. Now how do we fix it?

        The "sealing" ability would be abused as well =/

        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)

         

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        Anonymous Coward, Jun 17th, 2013 @ 2:38pm

        Re: Re: Okay, it's BROKEN. Now how do we fix it?

        How do you get rid of a secret court, if those in power are instructed to ignore that proof of such secrets exist?

         

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          Anonymous Coward, Jun 17th, 2013 @ 3:35pm

          Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?

          See: Second Amendment.

           

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            Niall (profile), Jun 18th, 2013 @ 6:11am

            Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?

            Ye gods, you lot are such juveniles that your every answer is "Second Amendment".

            "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!"

             

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              BearGriz72 (profile), Jun 18th, 2013 @ 9:29am

              Re: Re: Re: Re: Re: Okay, it's BROKEN. Now how do we fix it?

              Not every answer is The Second Amendment, however this IS one of the primary purposes of The Second Amendment (to prevent tyranny).
              The Supreme Court explained (In D.C. vs. Heller) that in order to keep the nation free (“security of a free state”), then the people need arms (ie. Guns {even lots of guns and/or big guns with lots of ammo}) to defend themselves.

              The Court states that the Founders noted "that history showed that the way tyrants had eliminated a militia consisting of all the able bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents".

              At the time of the Constitution's ratification, there was real fear that government could become oppressive: “during the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia (eg. The National Guard) was pervasive". The response to that concern was to codify the individual citizens' right to arms in the Constitution.
              Any Questions?

               

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  •  
    identicon
    Anonymous Coward, Jun 17th, 2013 @ 12:44pm

    You know what I like? Is all these 'retired' people coming out to speak up, yet there are extremely few in office that are saying the same thing.

     

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    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 12:52pm

      Re:

      It's harder to stick your neck out when you have a mortgage and kids at home.

      "Freedom's just another word for nothing left to lose" - Kris Kristofferson

       

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    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 12:53pm

      Re:

      You mean like the guy who brought all of this to our attention in the first place?

      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.

       

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    identicon
    Anonymous Coward, Jun 17th, 2013 @ 12:53pm

    Our government targets people and subjects them to horrors based upon... nothing to begin with.

    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.

     

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    Anonymous Coward, Jun 17th, 2013 @ 12:54pm

    I'd comment but I'm afraid to say how I feel about all of this. They're watching.

     

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    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 12:59pm

      Re:

      That's a sane response. When your friends have been killed for knowing where you were at a certain time, or when they claim that they murdered your girlfriend because she was your girlfriend, you have to know you are not dealing with people using a full deck.

      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.

       

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        PRMan, Jun 17th, 2013 @ 1:08pm

        Re: Re:

        This does NOT seem like a sane response. Going around killing people in staged "accidents" repeatedly is definitely going to raise some flags. If you think what the NSA is already dealing with is big, imagine what would happen if something like THAT got tied to them.

         

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          Anonymous Coward, Jun 17th, 2013 @ 1:39pm

          Re: Re: Re:

          They probably outsource it to the military or private contractors. NSA probably only does signal collection and analysis with some internal security. Who that information is passed onto is the bigger question. There is a general in charge of NSA based in FT Meade. Operation Northwoods was planned and approved by the joint chiefs. Kennedy stopped it, and now he's dead.

          Does anyone really think our government would do that to us?

           

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    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 1:06pm

      Re:

      Don't be. You might as well speak your mind. You have nothing to lose at this point. It's telling when those in power start acting like the people we spent decades fighting against.

       

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        Anonymous Coward, Jun 17th, 2013 @ 9:22pm

        Re: Re:

        This is the conclusion I have come to. By now there are so many data points making a profile about me, only I do not know what this information is. So I have begun using my blog space, and even though I get no traffic, aside from various spiders, I assume a copy is archived somewhere. Therefore, I want my words to be recorded, as I express them.

         

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    •  
      identicon
      Anonymous Coward, Jun 17th, 2013 @ 1:12pm

      Re:

      The least they could do is buy you a drink before transforming you into a reality show star.

       

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    identicon
    Anonymous Coward, Jun 17th, 2013 @ 1:05pm

    Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me.

    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.

     

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      slinkySlim, Jun 17th, 2013 @ 1:25pm

      Re:

      Ah, right, because you have a fucking clue about what's going down in FISA. I keep forgetting.

       

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      identicon
      Anonymous Coward, Jun 17th, 2013 @ 1:27pm

      Re:

      I would argue that the gag order raises the standard. The First Amendment applies even if the Fourth somehow does not. You need a VERY good reason to prevent someone from speaking, especially on third party on an ongoing basis for years.

      "probable cause is not the standard."

      What IS the standard? Reasonable suspicion? They don't even have THAT.

       

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      identicon
      Anonymous Coward, Jun 17th, 2013 @ 3:38pm

      Re:

      The people sitting in the FISA courts aren't judges. End statement. They don't have to be 'like her,' but they should be judges. Also, this isn't a court as US law would define one. A court must allow a fair hearing of both sides, and this one does not. Secret courts are the final sign that it is time to reclaim our government, even if that means by force.

       

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      Kathy, Jan 12th, 2014 @ 8:36am

      Response to: Anonymous Coward on Jun 17th, 2013 @ 1:05pm

      Of course they are searches.

       

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    Anonymous Coward, Jun 17th, 2013 @ 1:06pm

    When the NSA pay my phone bills they can listen to it too.

     

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    Anonymous Coward, Jun 17th, 2013 @ 1:18pm

    The NSA is full of freetards they get all this information for free and don't pay anybody, the least they could do is pay at least a drink, before transforming everybody in stars of their own reality TV show.

     

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    Anonymous Coward, Jun 17th, 2013 @ 2:25pm

    'they hear only one side of a case,'

    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'!!

     

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      nasch (profile), Jun 18th, 2013 @ 10:32am

      Re:

      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!

      I was going to say Cardassian.

       

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    identicon
    Anonymous Coward, Jun 17th, 2013 @ 3:01pm

    You mean those people retire??

     

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    FM Hilton, Jun 17th, 2013 @ 3:04pm

    Judging the judges

    True, a sitting judge is advised against speaking out against their colleagues, but what if their colleagues are acting unconstitutionally to begin with?

    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.

     

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    Edward Teach, Jun 17th, 2013 @ 3:31pm

    I know why the pro-copyright trolls are all over the FISA/NSA stuff

    THis morning I noticed that the copyright-maximalist trolls are all over the FISA/NSA articles. Usually, they stay out of civil liberties exclusives. At first, I couldn't figure out why The Legalistic Troll (I think previously known as The Anti-Mike) was spewig vitriol and FUD.

    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.

     

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      Pragmatic, Jun 18th, 2013 @ 5:51am

      Re: I know why the pro-copyright trolls are all over the FISA/NSA stuff

      You need an authoritarian streak a mile wide to even be able to stomach this kind of thing, let alone defend it. Maximalism is to authoritarians as water is to ducks, people.

       

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        Niall (profile), Jun 18th, 2013 @ 6:15am

        Re: Re: I know why the pro-copyright trolls are all over the FISA/NSA stuff

        I never understodd how your country managed to breed maximalist libertarians without them exploding. Must be some industrial-strength paradox-absorbing crumple zones - g** bless American industrial prowess!

         

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    Coyne Tibbets, Jun 17th, 2013 @ 9:25pm

    I recollect a law being passed in which the FISA court was required to rubber-stamp--could not refuse for any reason--requests in certain categories. Don't recollect the details.

    A rubber-stamp is even more untrustworthy than he implies.

     

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    BentFranklin (profile), Jun 18th, 2013 @ 8:15pm

    What are the names of these FISA judges? How do we know they even exist? How do we know the FISA court isn't really this or this?

     

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    The Truth, Jan 14th, 2014 @ 9:18am

    reality

    How can people who break and overlook the law a police officials be trusted with keeping the constitutionality of the law. Especially when citizens can be taken away to Gitmo and held with no proof. Plus these are not real judges at best they were former Police Chiefs and DA's not real judges or even Lawyers.

     

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