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FISA Judges Oppose Intelligence Reform Proposals Aimed At Court
cold fjord writes "The LA Times reports, 'Judges on the ... surveillance court have strongly rejected any proposed changes to their review process ... In a blunt letter to the House and Senate intelligence and judiciary committees, U.S. District Judge John D. Bates made it clear that the 11 judges on the Foreign Intelligence Surveillance Court are united in opposition to key recommendations by a presidential task force last month ... their skepticism adds to a list of hurdles for those advocating significant reforms following former National Security Agency contractor Edward Snowden's massive disclosures of domestic and foreign surveillance programs. ... Obama and some intelligence officials have publicly signaled support for creating an adversarial legal process in the court ... and aides have suggested the president will create an advocate's position or call for legislation to do so ... But Bates disagreed sharply, arguing that "the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation." Adding an advocate to "run-of-the-mill FISA matters would substantially hamper the work of the courts without providing any countervailing benefit in terms of privacy protection," he added.' — The Hill adds that Bates, "... recommended an advocate chosen by the court, rather than an independent authority, for only a limited number of cases. " — More at Computerworld and NPR."
You'll be crushed, either way. The ratchet turns only one way.
"Flyin' in just a sweet place,
Never been known to fail..."
And we should trust them why, exactly? Because they were on top of this stuff before? Sure doesn't seem that way to me.
If they're against an adversarial process, that suggests that the FISA court is not a neutral party. While I agree that it is inadequate, a third-party advocate for civil liberties would be better than the nothing that we have at the moment.
I'm suspicious of an advocate chosen by the court. Fox guarding the henhouse?
Then again, I'm also suspicious of secret court proceedings.
Organization accustomed to operating in secret resists the notion of having a potential opposing viewpoint to consider. I understand that they feel this suggested reform indicated the American people have decided they do not trust in the impartial judgment of this panel. Perhaps we should just remove the defense attorney from criminal proceedings as well. That should clear out the case backlog, I mean obviously Federal judges are beyond reproach. Let's kill the appellate courts while we are at it too. That should save time and money as well.
It is not something you get. It is something you take.
Few men in the history of the world gave up power after taking it: Cincinnatus and George Washington are the most recent examples, and they died hundreds of years ago.
I agree with the judges, based on where they currently sit. An advocate or any type of ancillary support for this stuff will just provide the illusion of a counter-argument.
However, I don't believe they should be sitting there in the first place. I bet if you asked their private opinions, they'd say the laws being enacted are what hampers their ability to protect freedom of speech and privacy, not the method by which they make their discussions.
It's basically that congress is trying to blame the problem on the judges, and they're saying: If you don't want this shit behind closed doors, stop making so much shit that goes behind doors.
Clearly, congress should be stripping away the power of it's various 'security' apparatus, and the judges are not the ones preventing that from happening.
Hey...it's a start.
Light travels faster than sound. This is why some people appear bright until you hear them speak.........
FISA courts are invalid and have no authority.
Are you surprised? If there was real oversight how could the "impartial" judges use their position for political favors. If you think that a political connected judge can/could/would choose to give up 1 iota of their power then you are very naive.
Quote " Most surprisingly, Bates said the judges opposed adding an independent advocate for privacy and civil liberties to the court's classified hearings, saying the proposal was "unnecessary — and could prove counterproductive."
http://www.latimes.com/nation/la-na-nsa-reform-20140115,0,5995749.story#ixzz2qVKeG7mQ.
You want a real impartial court to decide on surveillance ops/taps/intercepts then take 10 randomly selected people with no political or industrial ties, sequester them from the public and use them to rule on the secrets.
So an advocate would not benefit the process? Then the process is broken. In the interests of protecting innocents from government overreach, dissolve the FISA court.
I'd like my rights, freedoms, and liberties back please. I don't need or want you or your 'protection.'
... When you have a box full of rubber stamps and barrels of ink?
I've decided to stop wasting my time responding to AC trolls/sockpuppets... so if you want a response from me... login.
And the court will never know because they don't want the truth, they just want to be able to take the word of those trusted government lawyers that can't do their jobs unless no one knows about what they do - not even the targets of their prosecutions.
Any resistance to their secret court of secret laws would make them subject to the light of legal, governmental and public scrutiny.
Because when it changes those judges will be exposed as treasonous traitors of the United States.
They want to keep their treason ripe and unexposed.
One of reasons for the "Revolution" was secret courts.
Everyones screaming at the Judges, but read what they're saying:
"the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation."
REALLY read that. I read it as saying "You're trying to send an advocate to make this appear like it's an adversarial process. But it's not. This will still be a rubber stamping process until you send in a REAL advocate."
i.e. If there are going to be reforms, then they need to be real. Reforms like this (that achieve nothing but make the people think somethings been done) will only increase their workload. With no added benefit to the target of the NSA.
http://www.theguardian.com/world/2014/jan/10/nsa-mass-surveillance-powers-john-inglis-npr
http://investigations.nbcnews.com/_news/2013/12/19/21975158-nsa-program-stopped-no-terror-attacks-says-white-house-panel-member?lite
"“...there has been no instance in which NSA could say with confidence that the outcome [of a terror investigation] would have been any different” without the program."
Welcome to a world where a vast domestic surveillance system is rubber stamped and oversight is tame.
Domestic spying is now "Benign Information Gathering"
if they rejected it so strongly
All this FISA advocate stuff, and Obama rhetoric is a distraction, tinkering around the edges.
There should be NO collection of phone calls, e-mails, meta data, cell phone locations of Americans without a warrant from a judge, based on evidence. The fourth amendment is very clear on how warrants are to be justified. They must be specific against a person or thing to be investigated, not general warrants that the founders fought against King George to ban.
If these dam NSA snoopers would spend their billions on regular development of human sources, informants, and good old detective work, it is possible that terrorist attacks could be discovered and stopped. Collecting everything, and trying to sort through it- NOT. There are NO cases where NSA snooping has stopped terrorist plots, not a single instance. The recent Boston bombing is good proof of how ineffective mass surveillance is at catching terrorists. It is about controlling the population, suppressing dissent, and keeping politicians (political opponents) under watch so they can be controlled.
And congress needs to absolutely forbid weakening of commercial security and encryption technology, the hole it opens up for criminals to exploit is too big. There is little coverage of this last point in the popular press, probably too comples for the average Joe to understand.
I can't imagine how allowing the collection of metadata on just about everyone means that someone is "unnaturally focused on citizens rights." It's just the opposite, and you're a naive fool.
I have yet to hear one reasonable argument why the FISA court is needed at all. Get rid of it.
& reefer too. if you cannot trick them form a joint committee to smoke them out from their hovels which they are not hiding in.
While the judges are clearly biased, there is value in their point:
the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts
This is true: How can you have an adversarial process when the adversary isn't allowed to know that anything is happening? But there still needs to be some adversary. The problem is bigger than this though.
Ultimately, this court isn't even a court by any modern definition. No adversarial process. The judges are appointed without any confirmation or oversight. There is no appeals court. The NSA lies to the judges anyway. And the department that oversees them ignores complaints by the judges.
How is this a court at all?
Couldn't a monkey with a rubber stamp do the same job for a whole lot less?
To reduce crime, make fewer things against the law.
Snowden for President!
Who cares what the FISA judges think about the reforms? I mean, they're not the boss of the government.
This notion that there is some widespread fear in the government of how agencies and entities will react to changes in he surveillance regime are starting to get a little alarming. If you look at the NYTimes story here: http://t.co/lSEb6vWXSi, you will see the phrase, "backlash from national security agencies" in regard to reforms to surveillance. Who are they that now elected officials, who are charged with oversight over these agencies, have to worry about intelligence agencies' "backlash"? There have been several other stories recently that have mentioned similar "consequences" from the agencies if the scope or powers of those agencies were to be limited in any way.
I guess that tells us who's really in charge.
I'm telling you, unless we can figure out a way to chop this surveillance regime down to size, and quick, there is absolutely no chance that any other national problem can ever be fixed in any significant way. Not the economy, not security, not social problems, not anything. When Americans finally internalize the fact that they are always being watched and that our own security agencies view them as a threat, there will be a sickness over the American people like none we have ever seen before.
To this day, people from places like East Germany and other surveillance states have it in the back of their heads that there is always someone watching. As the husband of a woman from Eastern Europe, I know this to be true from my experience with family and friends. Once you have Big Brother in your head, he never goes away, maybe not for generations.
I would absolutely rather take my chances with the terrorists than see the US go on this way much longer.
You are welcome on my lawn.
There is no political solution for politicians. They're simply men ('men' as in men and women), and cannot be trusted to do what's right over what they wish, anymore than any other men. When the terrorists take over, they'll be dressed as nice businessmen, and will be heavily involved in the political scene. Perhaps this has already happened, as fear is the governing body's tool of the day.
Don't be worried folks, this shit'll be over before you know it.
Politics; n. : A religion whereby man is god.
They are a kangaroo rubber-stamp court objecting to doing other than what they were appointed to do, which is to unthinkingly say yes. I can't imagine anyone with any pride in their country feeling anything other than overwhelming shame and disgust for their role in this banana-republic activity. Except self-interested cronies.
Since they could be replaced by a rubber stamp that said "Yes" with nearly no change to what the court does except to save probably tens of millions of dollars per year, they're probably concerned about losing their jobs.
Can you imagine what Jefferson or John Adams would say about this possibly unconstitutional corruption of justice? This court could scarcely be farther from their ideals. Of course they're united in opposition. They're united because their bosses gave them all the same instructions. Why would we expect any one of them to say or act independently of anyone else?
I may have gone off on a tangent and lost my original intent, so let me try again:
As the Constitution does not specifically grant the federal government power to create secret courts, the existence of secret courts (and thus, all decisions handed down by them) are de facto unconstitutional, per the Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people
An enigma, wrapped in a riddle, shrouded in bacon and cheese
The whole solution is to slash the NSA budget and let them figure out where to get the most bang for their buck. They'll never tell you the truth about what they're up to and the "secret" courts are a joke. Cut their budget in half and they may have to choose between spying on their citizens and spying on foreign nationals.
Well, perhaps not naive.
There are two types of people in the world: Those who crave closure
Every democratic leader does this, unless they die in office.
I agree, but please note that the Fourth Amendment says nothing about "Americans" or "citizens". It says "the people".
Your argument applies just as much, just as strongly, to surveillance on an Egyptian or a Korean or an Iranian as on an American.
Think it through.
Is someone to identify all these FISA judges and get their personal information out there. Kind of like the documentary about the people on the secret MPAA ratings board (which is a brilliant documentary).
Only the State obtains its revenue by coercion. - Murray Rothbard
The fact is, the court does not have to reveal names to have public monitoring. Claiming that names of suspects are required, as you have shilled in the past, is irrational and illogical. Every person in court could be named "John Doe" for the proceedings, and every privacy and liberty advocate would be fine with that method.
What people want made public is the proceedings themselves. How are they ruling that John Doe is worthy of surveillance? Is the evidence being presented gathered legally and ethically? Is there even evidence presented to the courts, or is this simply a rubber stamp? What methods rulings are the judges giving and what powers are they granting to these agencies? Are the rulings and powers being granted legal?
Your point is not just irrational, it evades the reason people are demanding either these courts become open or we shut them down. Perhaps you should read what Due Process is, and what the Constitution states regarding the Justice system and your Liberty. You won't, because you are a habitual shill for a pro authoritarian state and it's agencies.
-The wise argue that there are few absolutes, the fool argues that there are no probabilities.
What is needed is a scheduled release of all FISA warrants. The warrants need only be secrete for a fixed time to serve any legitimate purpose. 10 or 20 years max. After 20 years, if they haven't got the guy, they probably won't; but the public will be able to tell what was happening in hindsight. With that additional information, we can make an informed decision on what to do with the program (keep it, scrape it, or modify it).
You have the wrong amendments. The Fifth Amendment doesn't apply here because the surveyed targets are not yet being held to answer for any crime and are not being deprived of "liberty" in the sense that the amendment means (i.e. put in jail). The Sixth similarly doesn't apply because there is no prosecution here yet.
The Fourth is more relevant because it governs searches, which is what FISA is all about. The Fourth requires warrants for searches and requires that they be (a) supported by probably cause and (b) judicially sanctioned. There naturally is no adversarial process because the very nature of investigating a crime prevents notifying the accused to prevent destruction of evidence, and the typical remedy is the exclusion of ill-gotten evidence from trial.
While my knee-jerk response is to dislike the FISA court's arguments here, they make sense. FISA doesn't need an advocate for the surveyed, because that advocate cannot effectively do their job without tipping off the suspect. All they can do, essentially, is complain and put up red tape roadblocks.
What FISA needs instead is a court of review and some means for defendants who are prosecuted with evidence found by searches that had the FISA court's sanction to object to and review their decisions to exclude any unconstitutionally obtained evidence from trial. Just like we do for improper warrants in normal criminal trials. Currently, most attempts at that are effectively barred by the state secrets doctrine which is the real Constitutional abomination here. The blanket denial of access to supposed state secrets to parties suing the government or appealing a conviction frequently blocks standing, which prevents a case from going forward on its actual merits.
That is what needs to change. The state secrets doctrine must be revoked or reformed to allow a truly adversarial process. The most logical way of doing this is to grant attorneys for the defense limited clearance to cover all evidence at issue in the trial and to balance it with heavy sanctions for leaking this evidence outside of the court -- including if necessary to his own client. This exception would naturally also extend to any plaintiffs attorneys involved in ethics complaints against a defense attorney who had access to state secrets but is accused of malpractice. Basically, "need to know" is extended to attorneys in a dispute over the issue. We would probably still need to limit access to attorneys with a security clearance instead of just anybody, and we would probably need to bar self-representation when the person in question doesn't have a security clearance.
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Babies are united in the idea that once they get a lollypop, that lollypop should not be taken away from them. Try and there will be screaming.
Remember: ever time a baby looses a lollypop, the terrorists win.
Article X: The powers not delegated... by the Constitution...are reserved...to the people
1) "and in such inferior Courts as the Congress may from time to time ordain and establish"
2) "capable of repetition, yet evading review"
So indeed, the Constitution has an answer for _me_ on this, that the FISA court is fine from a jurisdictional standpoint, but that's just because I know what these phrases mean.
They are all picked by one man - Supreme Court Chief Justice Roberts.
http://www.nationaljournal.com/nationalsecurity/chief-justice-john-roberts-appointed-every-judge-on-the-fisa-court-20130812
This was meant to be a body of jurists to check the validity of search warrants, but it developed its own body of case law. With no check on its power. None.
The NY Times notes "In making assignments to the court, Chief Justice Roberts, more than his predecessors, has chosen judges with conservative and executive branch backgrounds that critics say make the court more likely to defer to government arguments that domestic spying programs are necessary."
http://www.nytimes.com/2013/07/26/us/politics/robertss-picks-reshaping-secret-surveillance-court.html?ref=charliesavage&_r=0
So, yeah, I'd say the FISA judges don't want anyone looking over their shoulders.
Pay no attention to the man behind the curtain with all your metadata.
Um, no. What needs to happen is that there needs to be an in-depth and independent review of the effectiveness of the information gathering activity after the fact by a party other than the FISA court and security establishment. If the data that you are collecting does not in fact achieve the purported aims (apparently, despite the misleading cheer-leading by the NSA director, all the NSA data collected under FISA warrants has not actually provided any information that has been key/required in helping prevent any terrorist acts), then the "probable cause" justification process is broken and those justifications and those types of data gathering activities should no longer be allowed.
Laissez lire, et laissez danser; ces deux amusements ne feront jamais de mal au monde. - Voltaire
Since when was that a requirement? Just look at how far we've come with the TSA.
Suborbital [spaceflight] is the special olympics of spaceflight. - Rei
The NSA has shown it doesn't restrict itself to what's been FISA approved anyhow, so why bother with it?
Start with impeaching these judges. Then work your way down.
Impeach? No, these tools should be dragged from their courts, horse whipped, and thrown in the deepest darkest prison cell we can find on charges of treason. The lack of immediate action against the NSA, the secret courts, and all the affiliated lackeys that help set up this system is shocking. And I say treason, because these people have done more to damage and weaken the United States than any soviet spy ever did. They have systematically and brazenly violated the constitutional rights of every single person in the country. And they knew how illegal this whole program is, and did it anyway. They are truly dangerous individuals.
If America is ever brought down it will be from within, not without. And people like this are the well intending scumbags that will be responsible.
HA! I just wasted some of your bandwidth with a frivolous sig!
+1
The judges were originally placed there to prevent abuse, and protect the public from abuses, and in short, to serve as an advocate for the citizens. Now, when they have been hopelessly co-opted by the intelligence community, they argue that this very role has no validity, and the vehemently object to any watch dog looking over their sholders.
So, basically, they are pleading to lose their appointments. ...
This is a recursive problem. Who watches the watcher, and who then watches the watcher of the watcher, and who
I am absolutely stunned, shocked, and completely amazed that one branch of government would resist another branch exercising a check and balance against it.
If the data that you are collecting does not in fact achieve the purported aims (apparently, despite the misleading cheer-leading by the NSA director, all the NSA data collected under FISA warrants has not actually provided any information that has been key/required in helping prevent any terrorist acts), then the "probable cause" justification process is broken and those justifications and those types of data gathering activities should no longer be allowed.
What? Effectiveness is irrelevant. They shouldn't gathering the data even if doing so is effective.
But I am with you, that's how I read it too but they should voice their concerns more clearly so that the public can 'get it'....
What needs to happen is that there needs to be an in-depth and independent review of the effectiveness of the information gathering activity after the fact by a party other than the FISA court and security establishment.
What schema would you propose that differs from my own? You'd need someone with an understanding of probable cause (i.e. a court of some sort). You'd need someone with a reason to challenge it, so that an adversarial process is kept up, and it's not some sort of intra-government drum circle. You'd need some kind of security clearance to prevent data from leaking to the public if it turns out that it *is* good and useful (or that revealing it would put agents in harms way or undermine other good programs).
If it's for-profit but free, you're not the customer -- you're the product (e.g., the Slashdot Beta's "audience").
Film at 11.
'He who has to break a thing to find out what it is, has left the path of wisdom.' -- Gandalf to Saruman
I agree with you for the most part. Unfortunately, that security clearance requirement also makes it possible for government actors to water down the adversarial process by denying a security clearance from anyone who might be too troublesome and effective in defending the citizen's rights from intelligence agencies.