Federal Court Says NSA PRISM Surveillance Good And Legal Because The Gov't Said It Was Good And Legal

from the 'those-DOJ-guys-are-real-straight-shooters' dept

Three years after its inception, a prosecution involving possibly unlawful FISA-authorized surveillance, hints of parallel construction, and a very rare DOJ notification of Section 702 evidence has reached a (temporary) dead end. The defendants challenged the evidence on multiple grounds -- many of which weren't possible before the Snowden leaks exposed the breadth and depth of the NSA's domestic surveillance.

The federal judge presiding over the case -- which involved material support for terrorism charges -- has declared there's nothing wrong with anything the NSA or FISA Court did, so long as the surveillance was authorized and possibly had something to do with national security. (via FourthAmendment.com)

First, the defendants -- all accused of providing material support to Al Qaeda (remember them?) -- asserted the constitutionality of the NSA's upstream collections should be revisited in light of the Snowden leaks. The court [PDF] says these more-recent exposures are no reason to upset the precedential apple cart.

Controlling precedent decides this issue. In 2005, the Sixth Circuit rejected a Fourth Amendment challenge to FISA's procedures. The court explained in Damrah that the defendant's Fourth Amendment challenge lacked merit, as "FISA has uniformly been held to be consistent with the Fourth Amendment." Damrah has not been overturned or altered in light of the public disclosures regarding PRISM and upstream collections. And consequently, Damrah forecloses Defendants' constitutional challenge.

So, to add this all up: leaked documents from 2013 onward, exposing routinely-abused programs that massively expanded following the 2008 FISA Amendments Act, mean nothing when stacked up against a 2005 case predating the NSA's admissions of surveillance abuse and the exposure of the FBI's backdoor searches of domestic communications.

Furthermore, the court declares -- based on documents provided by the government directly to the court, but not to the defendants (in ex parte hearings) -- the FISA-authorized surveillance was on the up-and-up because the government provided documents declaring the FISA-authorized surveillance was on the up-and-up.

The court is sympathetic to those on the other side of the deck it helped stack, but only barely.

I recognize the challenge faced by a defendant in making a substantial preliminary showing that a FISA application contains a false statement when the defendant does not have access to the application. But the threshold burden exists nonetheless. [...] And here, Defendants have failed to satisfy that burden.

Oddly, the court then decides, after pulling from a 2005 decision and ignoring every FISA-related development since then, that previous domestic surveillance violations by the FBI have no bearing on this case.

The Government's errors from more than a decade ago [referring to a 2004 IG report about post-9/11 surveillance] do not amount to a substantial preliminary showing that an application for FISA collection relevant to this case contains a false statement which was knowingly or recklessly made and necessary to the finding of probable case.

Yes, this is true. These are not comparable things. But with the defendants unable to review the FISA applications, they're left with the judge's take as guided by government submissions -- submissions the defendants are also unable to review or even argue.

As for the Fourth Amendment challenge to Section 702 surveillance generally, the court says there's really no Fourth Amendment issues as this does not apply to "aliens in foreign territory." The court goes even further, though, suggesting the collection of communications outside of the country does not even require a warrant, even if it "inadvertently" sweeps up Americans' communications during the process.

Since the court has also unilaterally decided it can -- unaided by anyone but the government -- decipher the government's FISA-related submissions, there are no due process violations even if the defendants are prevented from viewing, analyzing, or rebutting the claims made by the government during these ex parte sessions. In the end, there's nothing left for the defendants to do but appeal, which will certainly happen what with the court dismissing out of hand the evidence provided by multiple leaked documents and documents officially released by the Director of National Intelligence. To buy the government's claims of above-board surveillance in secret court sessions and declare those NATSEC Kosher seems like a very close-minded move that grants the government more deference than documents the government released publicly itself shows it has earned.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Personanongrata, 17 Sep 2018 @ 3:33pm

    US Federal Court Affirms American Citizens have no Rights

    First, the defendants -- all accused of providing material support to Al Qaeda (remember them?) -- asserted the constitutionality of the NSA's upstream collections should be revisited in light of the Snowden leaks.

    providing material support to Al Qaeda is exactly what the US government and it's NATO satraps are doing right now in Syria and Yemen.

    Italicized/bold text was excerpted from a report titled How America Armed Terrorists in Syria found at the website www.theamericanconservative.com:

    This flood of weapons into Syria, along with the entry of 20,000 foreign fighters into the country—primarily through Turkey—largely defined the nature of the conflict. These armaments helped make al Qaeda’s Syrian franchise, al Nusra Front (now renamed Tahrir al-Sham or Levant Liberation Organization) and its close allies by far the most powerful anti-Assad forces in Syria—and gave rise to the Islamic State.

    By late 2012, it became clear to U.S. officials that the largest share of the arms that began flowing into Syria early in the year were going to the rapidly growing al Qaeda presence in the country. In October 2012, U.S. officials acknowledged off the record for the first time to the New York Times that “most” of the arms that had been shipped to armed opposition groups in Syria with U.S. logistical assistance during the previous year had gone to “hardline Islamic jihadists”— obviously meaning al Qaeda’s Syrian franchise, al Nusra.

    https://www.theamericanconservative.com/articles/how-america-armed-terrorists-in-syria/

    Furth ermore, the court declares -- based on documents provided by the government directly to the court, but not to the defendants (in ex parte hearings) -- the FISA-authorized surveillance was on the up-and-up because the government provided documents declaring the FISA-authorized surveillance was on the up-and-up.

    It is readily apparent that US District Court Jester Jeffery J Helmick believes that the US government and it's agents would never tell a lie (HaHa). Unfortunately for federal court jester helmick and the citizens that populate the once was republic the court is wrong. Every day official US government spokespeople look directly into the camera and lie. They lie about economic growth, unemployment numbers, war, torture, taxation, indefinite detention without charge, bogus health care bills, bailouts for bankers (etc). In short every time a US government spokesperson's lips are moving they are lying.

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

  • identicon
    Ami, 17 Sep 2018 @ 4:14pm

    Depressing.

    Because of people accused of supporting terrorists, I as an American citizen who has does nothing remotely resembling aiding terrorists, lose my rights.

    The disgusting way in which discourse and jurisprudence on mass surveillance post-Snowden has strongly shook my belief in the government following the rule of law.

    I also firmly believe the leadership of some intelligence services view the law as an obstacle to their mission and have no problem flouting the law if they get what they want. After all, it's not like many courts would rule against them routinely screening the private communications of hundreds of millions of U.S. citizens.

    Might be a little easier to swallow if the leadership made a public case for why they can't do their mission because of the law rather than constantly lie and say what they're doing is on the up-and-up.

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

  • icon
    MarcAnthony (profile), 17 Sep 2018 @ 4:49pm

    Praise Damrah!

    The judge states that Damrah has not been overturned or altered, and it never will be, unless claims can be heard that might overturn or alter it. This is just another showing that precedent can be a type of cult; it was meant to be a framework in unfamiliar situations—not a religion that creates insurmountable burdens for the aggrieved.

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

  • icon
    Anonymous Anonymous Coward (profile), 17 Sep 2018 @ 5:10pm

    But was it foreign or US surveillance?

    I will admit that I have not done a lot of research on this, but nothing I have read points to whether the surveillance was of people on US soil or in foreign soil. If the latter, then the surveillance was legal, but then why are they in a US court in Ohio? If the former, then why does the Fourth Amendment not apply? Right, the warrant provided by the FISA court. Then why is the 6th Amendment not applicable and the exparte communications allowed?

    Amendment 6 - Right to Speedy Trial, Confrontation of Witnesses.

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

    The ability of the Government to have exparte communications with the judge certainly appears to violate this constitutional REQUIREMENT.

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

  • identicon
    Anonymous Coward, 17 Sep 2018 @ 5:12pm

    Kafka is rolling over in his grave.

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

  • icon
    Uriel-238 (profile), 17 Sep 2018 @ 5:22pm

    National security

    That's one of those magic phrases like good faith essentially, a fuck-human-rights-and-government-integrity because doctrine of necessity? 9/11?

    Because they can?

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

    • icon
      Anonymous Anonymous Coward (profile), 17 Sep 2018 @ 6:23pm

      Re: National security

      Agreed. I think there should be some proof of the relevance to 'National Security' every time it is claimed. Each and every time. Otherwise it just sounds like a lame excuse, and probably often is.

      Of course they are going to come back with that old saw 'but, but, but, sources and methods will be compromised' (or some other nonsense designed to scare), then we need to come back with tell us the 'National Security' implications, believably, without telling us about sources and methods or other nonsense (not that we can't figure those out, just like the opponents can't figure them out). Ha!

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

  • identicon
    WhatTheFrak, 17 Sep 2018 @ 7:00pm

    Hackers Unite against FISA???

    Seems to me that some of the hackers out there could focus their energies on finding any dirt about the FISA and SCotUS justices and see how they like their "personal" information being made public.

    Would they then turn around and decide that the treasonous alphabet agencies, hereafter known as the "TAA", shouldn't have access to all of the data they do?

    Or have the TAA entities already used said data to strong-arm the justices into doing what they wanted?

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

  • identicon
    John Cressman, 18 Sep 2018 @ 4:47am

    Um... RIIIIGHT....

    The SUREST way to know something isn't true... is if the government says it IS true.

    The you can be absolutely positive it isn't.

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

    • identicon
      Anonymous Coward, 18 Sep 2018 @ 7:46am

      Re: Um... RIIIIGHT....

      Ummm - right.

      The government says the planet earth is roughly a sphere and orbits the sun once a year.

      You are claiming that is not true?

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

  • identicon
    Loki, 18 Sep 2018 @ 9:24am

    Whenever I see the words "national security" and I really look at the given situation I rarely see anything that has to do with actually protect the American people and almost always has to do with protecting the Federal government, and sometimes a select few major corporations, from anything resembling any real accountability.

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Takedown
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.