A Secret Court Making Secret Laws? That's No Democracy

from the get-rid-of-the-fisa-court dept

Last December, well before the Ed Snowden leaks revealed some information about the FISA court (FISC) and its rulings, we had already noted that the court itself was almost certainly unconstitutional. More recently, we talked about how the fact that all the court’s judges are appointed by the Chief Justice of the Supreme Court means that the court has turned into a rubber stamp made in the image of some of the most “law and order”-minded Chief Justices from the past few decades. Ezra Klein has since expanded on that to discuss the oddity of how current Chief Justice John Roberts is basically the Chief Justice of the Surveillance State, answerable to absolutely no one: “You have exclusive, unaccountable, lifetime power to shape the surveillance state.”

Over the weekend, the NY Times put out a powerful piece discussing how FISC has basically become a shadow Supreme Court, doling out all sorts of important rulings in total secrecy. It rules on cases where it only hears one side, and where there are no appeals, no guarantee that the full story is presented, and involves a bunch of judges who tend to have law enforcement backgrounds before being appointed to the court. In the end, you have a secret court issuing secret rulings by ex-law enforcement officials, allowing their former colleagues ever greater power to spy on everyone.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

[….] 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. In fact, it is not clear in all circumstances whether Internet and phone companies that are turning over the reams of data even have the right to appear before the FISA court.

As an example of how FISC has basically completely overturned the rules of surveillance in secret, the NY Times reveals the details of some of its thinking, taking a extremely narrow ruling meant to apply in special cases, and turning it into a general rule that has allowed the vast capture of information:

In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”

I don’t care where you come down on the importance of widespread surveillance — I just don’t see how you can possibly square the above interpretation of the law with the 4th Amendment. If “special needs” can be used to justify mass collection of data on just about everyone “just in case” it might stop some sort of terrorist attack, then you no longer have a 4th Amendment. At all.

But, the bigger issue here is just the fact that we have a secret court issuing secret interpretations of the law that have a massive impact on our privacy. This is supposed to be an open democracy. An open democracy doesn’t involve secret courts and secret laws. We have laws that everyone knows, and which the public can discuss and weigh in on through their elected officials. When you set up a secret court, making secret rules with no oversight, and with all of the judges appointed by a single Supreme Court Justice with a particular bias, you no longer have a functioning democracy at all. And that’s downright scary.

This is a point that some Senators have been making for years now, but the leaks from Ed Snowden have really made it that much clearer just how insane the situation is. Earlier, it had seemed like perhaps there was one or two rulings from FISC that had some oddities in the interpretation, and which should probably be revealed to the public. However, the various revelations so far suggest that the issue is much, much bigger, and we have a secret “shadow court” system that is systematically obliterating the 4th Amendment and helping to create and then “legitimize” the vast surveillance state.

The Snowden leaks have shone a number of lights on various bad things within our government, but one thing that they have made abundantly clear is that the FISC needs to go. Whether that means it needs to be opened up, or to have greater oversight, or just be done away with completely, could be up for discussion. But if it remains the way it is, it’s clear that we’ve thrown away our basic democratic principles, and moved towards the same sorts of autocratic regimes with secret courts that the US has always presented itself as being against.

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Comments on “A Secret Court Making Secret Laws? That's No Democracy”

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out_of_the_blue says:

Wrong conclusion must be from not seeing The Rich as bad actors.

Secret courts are just a small part of the means, not WHO.

I believe that Mike’s elitist views that The Rich deserve what they have and are always Good and Beneficent ends up in his mis-stating the problem: it’s not that “we [the people have] thrown away our basic democratic principles”, but that the eternal criminals, those who seek power, have yet again stolen our liberty. Believe it or not, there are organized groups and interests which seek to steal the liberty of the people, because when you’ve a thousand times excess in all material matters, stealing the non-material is the only game left.

If you don’t finger the right criminals, then you’ve no hope of ever getting to a solution. And yet again, Mike just complains that things are broken, doesn’t even attempt to put out ideas to fix matters.

Actually, it’s amazing that the marginally better conditions — the ABSENCE of an inherited ruling class — in the US lasted so long.

Anonymous Coward says:

Re: Wrong conclusion must be from not seeing The Rich as bad actors.

“If you don’t finger the right criminals, then you’ve no hope of ever getting to a solution. And yet again, Mike just complains that things are broken, doesn’t even attempt to put out ideas to fix matters.”

And you believe that fingering criminals will help? Whatever gets you off, I suppose.


Pragmatic says:

Re: Re: Wrong conclusion must be from not seeing The Rich as bad actors.

^This. Wealth and success are not the problem. Control freakery and elitism are.

Mike never said anything for or against The Rich as a group because that’s not how he thinks. He’s a reasonable man. Besides, they’re not a group and don’t collude, as such.

And, while we’re on the subject, “the group” is not merely comprised of “the rich.” Don’t forget the corporatist enablers who claim that there is such thing as a free market, coupled with Blue’s beloved IP rightsholders.

She’s got such a blind spot where that is concerned, it’s ridiculous. Surveillance is a new and growing industry in a land where manufacturing has mostly been outsourced in the name of the market. IP rights is a last gasp at extracting rents in the name of artists and innovators who often go unpaid for their input, as the actual rights to their work are usually held by others.

As I have said many times before, her argument is invalid and she can’t see that because she doesn’t want to acknowledge the fact that she’s wrong. Because that would mean having to agree with the “filthy commie pirates,” and we can’t have that, can we?

FM Hilton@yahoo.com (profile) says:


It has become abundantly apparent that nobody in this country’s government vaguely understands or cares about what the Constitution says.

If they read it, they ignored the basic concepts. If they didn’t read, they think it’s a fiction novel.

That goes for everyone-from the President on down to the janitor in the Capitol restrooms.

We have a truly dysfunctional government and country.

Our democracy is now shot. We have a government full of incompetent fools who are giving us laws that don’t even begin to be lawful. Then they have the temerity to tell us that “It’s for your own safety.”, with their fingers crossed behind their backs.

What a bitter and sad joke this country has become.

“Land of the free, home of the brave.” Must have been written as a comedy skit.

Is there another country I can live in where laws are not made in secret by secret courts in total illegality?

John Fenderson (profile) says:

Re: Laws

It has become abundantly apparent that nobody in this country’s government vaguely understands or cares about what the Constitution says.

Oh, they understand (and even care, in a perverse way). They simply view the Constitution as an obstacle to be overcome, rather than the only hope we have of remaining free without needing another bloody revolution.

Anonymous Coward says:

Re: Laws - Is there another country I can live in where laws are not made in secret by secret courts in total illegality?

New Zealand … um no um …
Germany … well
Oh yes Sweden … (*&P
Um … South Africa! … oh yea .. darn.
OZ- Australia … Nope

The answer to your rhetorical question is no.
We can try to run but there is nowhere to run, or we can fight for what so many of our fathers and fathers before them fought and died for.
I hate what our government is doing, it is wrong, illegal and immoral. Although, if we are not willing to face up to it head on and fix it, then What a bitter and sad joke this country’s citizens have become.

Anonymous Coward says:

By definition, the USA has never and will never be a democracy.

“Democracy is a form of government in which all eligible citizens participate equally?either directly or through elected representatives?in the proposal, development, and creation of laws.”

Make me laugh some more. Voting for fascism democracy does not make.

Anonymous Coward says:

until the people have the sense to remove from office those that have this opinion and take that opinion to the extremes they have, nothing is going to change! Congress makes the laws. unless Congress is held accountable, those following the laws will do so how they want. get the law makers to be explicit with each law, then make the execution of those laws explicit too and you are getting somewhere. you have to start near the top. get that bit right and the ones going down the tree know what limitations are on them. the other thing that needs stopping immediately are ‘the secret courts’! get rid of them and make sure that those on any court are up to the job. if they have aspirations of more than they are able or allowed to do, get shot of them!

John Fenderson (profile) says:

I am a free man

Being free isn’t something that is granted to you. It’s something you take. As a free man, I refuse to recognize the validity of any secret law, period.

True, in theory, I could be imprisoned, or worse, for violating a law I am not allowed to know about — but at least I would be a free man in prison. Better that than a slave outside of prison.

Internet Zen Master (profile) says:

Now the big question is

Will the big US news organizations cover stuff like this (along with the latest NSA leak about deals with foreign telecoms)?

*checks CNN*

Nope. They’re too busy covering the airplane crash down in San Francisco to bother with such a good story. Unconstitutional secret courts which are effectively eviscerating one of the most important amendments in the US Constitution are apparently a non-story for such a world-class “news organization”.

Uriel-238 (profile) says:

What part of "Secret Court" is NOT scary?

I guess the needs aren’t that special anymore.

I mean even if we could justify that they’re only going after terrorists (despite that many non-terrorists were indicted based on wire-tap incrimination since PATRIOT), that still makes privacy-dependent commercial practice here in the US impossible, or at least pushes commerce back to the 80s.

Things need to change, and the sooner we realize that things need to change the more options we have as to how.

Anonymous Coward says:

“The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers…”

So the War on Drugs killed the constitution? War on Drugs has the be the most damaging war in America’s history.

Hell, we even made it though Pearl Harbor and WWII with the constitution in tacked, but the War on Drugs and Terror completely destroyed this country.

“Beware of the War Machine”

Uriel-238 (profile) says:

Wrong conclusion blah blah blah...

I don’t get that Mike sees all rich people as bad, and I’m not sure if it’s that being rich makes one more inclined to be a jackass, or that rich jackasses are capable of doing more damage.

It’s probably both. We do have a streak of wanting our due-plus. Also, if we work a little but gain a lot, we feel we’ve earned ours, and find it tempting to ignore the disparity of those who work an awful lot, yet gain little, or none.

But there are certainly rich guys who have perspective enough to support social equality even when it is against their own financial gain. They certainly make news less than the dastards.

Anyway, our DoJ is awfully light on white-collar economy-wrecking banking shysters in contrast to street thugs that are an annoyance to a single community. I’d bet we could call that an incident of regulatory capture.

FM Hilton (profile) says:

Repeat untll done

” I fear even if a case was was brought to address the constitutionality of the FISA court the courts would toss the action out on the grounds that the plaintiff lakes standing to challenge the statute. You know because plaintiff can’t prove they were affected by court.

You mean this one? http://tpmmuckraker.talkingpointsmemo.com/2013/06/aclu_nsa_verizon_lawsuit.php

“The last time the American Civil Liberties Union challenged the power of the National Security Agency in court, the Supreme Court wound up dismissing the case, holding that the groups represented by the ACLU did not have ?standing? to challenge the NSA?s warrantless wiretapping program, because they could not prove their communications were monitored.”

It’s going to take a lot more lawsuits to get this stuff even looked at. I don’t trust that the Supreme Court will even care enough to look at this latest one.

I mean, look what they did with Citizens United. That turned out so well, didn’t it?

Binko Barnes (profile) says:

Chief Justice Happy With Secret Laws

The most important point to note in all of this is that the Chief Justice of The Supreme Court is perfectly happy with this entire edifice of Secret Courts, Secret Laws, Secret Police, Secret Prisons and who knows what else that is still secret. He plays an active role, no doubt thrilling in the exercise of raw and unaccountable power.

This tell us how utterly and completely the entirety of the Federal Government is complicate in building this unconstitutional police state we now live in. For all intents and purposes we are little different in concept from the Soviet Union of the 1970s. They too had a constitution that guaranteed a variety of “freedoms”. Their constitution was ignored by those in power just like ours is ignored.

desertspeaks says:

secret courts

Via the law of presumption these courts TRICK everyone into believing these laws are not only applicable but constitutional. UNTIL they are rebutted via an affidavit, the court will PRESUME that you agree that they are applicable and constitutional!

Marbury V Madison, ANYTHING repugnant to the constitution is NULL AND VOID FROM ITS INCEPTION!
Secret courts, secret laws, secret interpretations are UNCONSTITUTIONAL and as such, no one has any duty to obey them or be bound by them.

Further; they are only applicable to US CITIZENS/PERSONS, most people are NOT US CITIZENS/PERSONS!
You can only become a US CITIZEN VIA THE The Statute at large to become a US citizen is The act of Congress of April 14, 1802, (2 Stat. 153, c. 28, ? 1; Rev. St. ? 2165
THAT ACT SAYS, and PAY ATTENTION; provides that “an alien may be admitted to become a citizen of the United States in the following manner, and NOT OTHERWISE.?
The following is the ONLY WAY one can become a US CITIZEN!
1. FIRST. He shall, two Years at least prior to his admission, declare before a proper court his intention to become a citizen of the United States, and to renounce his allegiance to the potentate or sovereignty of which he may be at the time a citizen or subject.
2. SECOND. He shall, at the time of his application to be admitted, declare, on oath, before some one of the courts above specified, that he will support the Constitution of the United States, and that he absolutely and entirely renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty; and particularly, by name, to the prince, potentate, state, or sovereignty of which he was before a citizen or subject, which proceedings shall be recorded by the clerk of the court.
3. THIRD. It shall be made to appear to the satisfaction of the court admitting such alien that he has resided within the United States five years at least, and within the state or territory where such court is at the time held one year at least and that during that time he has behaved as a MAN of a good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same; but the oath of the applicant shall in no case be allowed to prove his residence.
This statute was only amended once. By the act of May 26, 1824, (4: star. 69, c. 186, ? 1; Rev. St. ? 2167,) it removed the two year limit that (2 Stat. 153, c. 28, ? 1; Rev. St. ? 2165 provided.
The TERM of their law for Man is, NONRESIDENT ALIEN. This is correct, but they used this term knowing that everyone would say ?I am not an Alien?, thereby negating the very thing that would make them free.

Your attorney will tell you NONE of this for he is an officer of the court and his first duty is to the court, EVEN TO THE DETRIMENT OF HIS VICTIM AKA CLIENT!

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