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Appeals Court Affirms NSA Surveillance Can Be Used To Investigate Domestic Criminal Suspects

from the spooks-in-the-federal-cop-shop dept

The Seventh Circuit Court of Appeals confirms what's already known about the NSA's domestic surveillance: it's not just for terrorism.

The NSA collections -- done in the FBI's name -- are supposed to only gather info related to international terrorism. But that requirement has been phased out. The NSA "tips" a certain amount of data to the FBI for its own use and it has been shown in the past to do the same for the DEA, which it then instructs to obscure the origin of its info.

An opinion [PDF] just released by the Appeals Court, says basically the same thing: although the NSA's surveillance is supposed to be used to sniff out terrorists, there's nothing in the law that prevents it from using its collections to go after criminals.

Gregory Turner was convicted of conspiring with Prince Asiel Ben Israel (both US persons) to provide aid to Zimbabwean "Specially Designated Nationals" -- in this case a group working to block the institution of more democratic processes and procedures in that country.

Turner moved to suppress the evidence, claiming that the government's use of a FISA order to obtain information on his activities violated the NSAs foreign intelligence directives. But the court finds the directive does not limit FISA warrants to terrorism only. The government only needs to "reasonably believe" a target is an "agent of a foreign power."

The government informed Turner it had gathered evidence using FISA-authorized surveillance. Then it refused to turn over information to him with regards to its activities. From the redacted, terribly-reproduced decision:

On February 27, 2014, Turner filed a motion for disclosure of FISA materials and motion to suppress evidence obtained or derived from FISA. The government responded to these motions with a classified brief and a sealed appendix submitted ex parte to the district court and redacted, unclassified version served to Turner. Additionally, the government filed a "Declaration and Claim of Privilege" by the Attorney General that declared, "it would harm the national security of the United States to disclose or hold an adversarial hearing with regards to the FISA materials…"

Both motions by Turner were denied. These denials have been upheld by the Appeals Court. Turner claimed the government failed to meet its probable cause requirements for the FISA warrant and also violated his First Amendment rights with its surveillance.

Much of the court's reasoning is redacted but it does have this to say about Turner's assertions.

Turner contends that "FISA appears to require the communications subject to surveillance of a United States person must related directly to activities involving international terrorism as defined in FISA." Turner misstates the law. FISA is not limited to activities involving international terrorism. FISA authorizes surveillance and searches based on probable cause that the target is an "agent of foreign power," which relates to "any person" engaged in certain activities… on behalf of a foreign power, including "clandestine intelligence gathering activities" and "enter[ing] the United States under a false or fraudulent identity… or while in the United States… assum[ing] a false or fraudulent identity." These activities are listed in addition to "international terrorism."

Not only that, but the laws governing FISA-ordered activities were loosened in 2008 to encompass all sorts of criminal activity not related to foreign powers or international terrorism.

FISA, as amended in 2008, "eliminated any justification for the FISA court to balance the relative weight the government places on criminal prosecution as compared to other counterintelligence responses." [...] [T]he amended FISA statute "does not oblige the government to demonstrate to the FISA court that its primary purpose in conducting electronic surveillance is not criminal prosecution."

As for Turner's First Amendment claims, the court finds the activities he engaged in were not covered under the First Amendment, no matter how "right" Turner may have believed undermining the installation of a democratic government was. As the court sees it, the government established Turner was an "agent of a foreign power," something that strips away protections normally afforded to political activity. Or maybe just political activity the US government doesn't approve of.

Either way, it's very clear FISA court orders can be used to engage in domestic surveillance purely to investigate criminal activity, something the NSA hasn't exactly been forthcoming about. As long as a foreign power is somehow involved, the NSA and the FBI are interchangeable surveillance pieces, even though one of them is assumed to be mostly uninvolved in domestic surveillance of US persons.


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  • identicon
    Anonymous Coward, 19 Oct 2016 @ 8:34am

    Text of the law is irrelevant here

    The text of the law is irrelevant where it contradicts the Constitution. The law can say whatever it wants, but it is invalid where it exceeds the bounds set by the Constitution. This Court seems to ignore that, preferring the interpretation that whatever Congress passed is valid unless the Supreme Court can be bothered to specific say otherwise.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 19 Oct 2016 @ 9:11am

      Re: Text of the law is irrelevant here

      As if the Constitution has prevented secret interpretations, secret laws or blatant violations from happening. RIP Constitution, long live the Police State.

      reply to this | link to this | view in chronology ]

      • identicon
        Chort, 19 Oct 2016 @ 1:38pm

        Re: Re: Text of the law is irrelevant here

        Using secret interpretations, the Constitution can be made to mean whatever the government wants it to mean. The Constitution has become a joke.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2016 @ 9:08am

    I propose the following law:

    Evidence used in a criminal prosecution may not be withheld from the public.

    Just that. Discuss.

    reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 19 Oct 2016 @ 9:12am

      Re: I propose the following law:

      It should be that way already because due process is a right enshrined in the Constitution. No law is needed for it. And no law will suffice if law enforcement/intel agencies couldn't care less about the Constitution itself, no?

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Oct 2016 @ 9:41am

      Re: I propose the following law:

      Thoroughly shat upon, and it is now hundreds of feet below the pile...

      Next?

      reply to this | link to this | view in chronology ]

    • icon
      Groaker (profile), 19 Oct 2016 @ 11:33am

      Re: I propose the following law:

      While I certainly agree with you, there are whole trials that are withheld from the public, only known to exist because of docket numbers that have no tie in to any extant case.

      The courts were our last hope. The executive branch, Congress and the Fourth Estate have long been beyond having even a facade of interest in a democratic republic, and the now it is extraordinary news when a judge dimly recalls that there was a document called the Constitution or the Amendments thereof.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 19 Oct 2016 @ 1:41pm

        Re: Re: I propose the following law:

        The courts were our last hope.

        No, there's still one possibility left. No wonder they want to disarm the citizenry.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Oct 2016 @ 7:20pm

          Re: Re: Re: I propose the following law:

          Agree. I have not owned a weapon in 25 years. Not a fan of them at all, but I am looking at picking up one now. I absolutely hate that I have to spend my money to feel safe or at least feel like Ill be able to get a few of them before they get me. The USA officially sucks now.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2016 @ 9:47am

    I wish one serious person with a pair of balls....

    And the clout to ask the question...

    While the government continues to ignore the constitution so blatantly, how is it NOT a clear indication that the Government itself seeks to incite a civil war against its own people? Why are the agencies themselves not being brought under charges?

    The American Government has made it damn clear that IT sees itself as American and NOT "The People".

    reply to this | link to this | view in chronology ]

    • icon
      Ryunosuke (profile), 19 Oct 2016 @ 10:29am

      Re: I wish one serious person with a pair of balls....

      not just the Constitution, but also possibly the Posse Comitatus Act?

      IIRC, the US cannot use military personnel to enforce domestic policies. It seems to me that the mere act of looking for unlawful cyber-crimes is itself an enforcement of said crimes.

      reply to this | link to this | view in chronology ]

      • icon
        Groaker (profile), 19 Oct 2016 @ 11:35am

        Re: Re: I wish one serious person with a pair of balls....

        As I recall Posse Comitatus has been eroded to meaninglessness.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 19 Oct 2016 @ 11:54am

          Re: Re: Re: I wish one serious person with a pair of balls....

          There are all sorts of ways to get around that thing.

          The act explicitly names Army & Air Force, therefor you can instead use the Navy. So if they want to use Force against Citizens all they need to do is create a new Arm Service call the "FaC" (fuck all citizens) and arm them to the teeth, voila... now you can deploy a force equal to that of a war machine against the people...

          OR

          You can just give the police Military Grade gear and not even have to worry about the fucking name of shit and tell them to go and flash bang babies faces when ma-ma hits a roach for the glaucoma.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 19 Oct 2016 @ 1:42pm

      Re: I wish one serious person with a pair of balls....

      Ask away.
      Get ignored.
      Feel better now?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2016 @ 10:22am

    Wouldn't this violate the Posse Comitatus Act or does the FISA Amendments act take priority over it?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2016 @ 10:27am

    What about the Sixth Amendment?

    "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him"

    The 6th Amendment says nothing about "parallel construction".

    Either the NSA can no longer be secret, or the 6th Amendment is gone; you can't square this circle.

    reply to this | link to this | view in chronology ]

  • identicon
    Peon Leon, 19 Oct 2016 @ 10:39am

    Smile when we shoot you, pardnah

    You cannot reason when treason trumps all. When criminal psychopaths have the power ... The Golden Rule: Dem Who Have The Gold, Rule.

    As per The Treasure Of The Sierra Madre: We don need no stinking constitution. Wha for? We have de big hoses, horses, guns, and big singing, swinging Richards of of personhood.

    What if there was an election and nobody showed? CNN etc. would fake a script, and call it breaking news (rhymes with noose).

    reply to this | link to this | view in chronology ]

    • identicon
      I.T. Guy, 19 Oct 2016 @ 11:29am

      Re: Smile when we shoot you, pardnah

      Off Topic:
      As I was writing my comment yours was right above and I thought the first sentence said:

      You cannot reason when reason trumps Trump.

      I think I need more coffee.

      reply to this | link to this | view in chronology ]

  • identicon
    I.T. Guy, 19 Oct 2016 @ 11:27am

    "The Seventh Circuit Court of Appeals confirms what's already known about the NSA's domestic surveillance: it's not just for terrorism."

    But yet when mentioned years back, after reading The "Patriot" Act, and predicting that this would be used against Us... I was told it/I was just a conspiracy theory/Theorist. The latter may be true but the former has come to pass.

    reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 19 Oct 2016 @ 11:38am

    Cruel and Unusual

    >Appeals Court Affirms NSA Surveillance Can Be Used To Investigate Domestic Criminal Suspects

    Apparently freedom is just another word for living your life under the unblinking eye of the total surveillance state.

    In a rational and just world a person being forced to fund (via taxation) their own surveillance by pliably supine government stooges would be considered a cruel and unusual endeavor.

    Nice job in protecting/defending the Constitution you worthless tax feeding federal court jesters.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 19 Oct 2016 @ 1:40pm

    it's for everything and nothing. it is whatever they choose to make it apply to at that time, as there is no accountability for them breaking laws or lying.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2016 @ 7:18pm

    So much of our country has been lost due to bush and obama. Nice knowing you america.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 19 Oct 2016 @ 7:24pm

    Well we will know its about to hit the fan when we see gun stores putting up "going out of business" signs. Time to buy my first gun in 20 years.

    reply to this | link to this | view in chronology ]


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