White House Asks FISA Court To Ignore 2nd Circuit's Decision On Bulk Surveillance

schwit1 sends news that the Obama Administration has made a legal request to the Foreign Intelligence Surveillance court to ignore a ruling from the Second Circuit Court of Appeals making bulk surveillance illegal. The government says it's doing so to create an "orderly transition" between now and the beginning of USA Freedom Act provisions in six months. Their legal argument is that the Circuit Court's rulings are only binding for lower courts — the FISA court is secretive and separated from the normal legal process, so it doesn't necessarily fit in the normal court hierarchy.

ACLU deputy legal director Jameel Jaffer said, "While the FISA court isn’t formally bound by the second circuit’s ruling, it will certainly have to grapple with the second circuit’s interpretation of the ‘relevance’ requirement. The [court] will also have to consider whether Congress effectively adopted the second circuit’s interpretation of the relevance requirement when it passed the USA Freedom Act." The issue is further complicated because the Circuit Court did not actually issue an injunction against bulk surveillance, deferring instead to the congressional debate already underway about the Patriot Act and USA Freedom Act.

Comments

Technically, they are correct.

[BitterOak]

The FISA Court is not under the jurisdiction of the 2nd Circuit Court of Appeal. In the Federal Court system, the Supreme Court is at the top. Immediately below the Supreme Court are the Courts of Appeal for the different circuits which cover different geographical regions of the country. Also sitting directly below the Supreme Court are the Federal Circuit Court of Appeal which handles specialized cases like patent cases, and the FISA court, which handles cases whose national security implications require secrecy. Below the various Circuit Courts of Appeal are the district courts, which are the lowest courts in the federal system.

So, the FISA court, sort of sits beside the 2nd Circuit court, not below or above it. Only the Supreme Court can direct how the FISA court must interpret the law. That's not to say that the FISA court can't be guided by opinions in other circuits. Courts of appeal frequently look to opinions in other Circuit courts of Appeal for guidance on cases involving issues they haven't decided before, but they are not bound to follow opinions in other Circuits.

Re:Technically, they are correct.

[Anonymous Coward]

You are wrong on a number of counts.

Circuit splits do occur and it's not a huge contradiction in the law. Every court in the country will have an opportunity to follow it or decide otherwise, if that issue pops up. The district courts in the 2nd circuit will have to follow 2nd Circuit law. Not a biggie, the Federal Circuit has done that time and again when they are given an opportunity to hear a copyright complaint like in the case of Google v. Oracle. They are happy to ignore other circuit law and create abominations in legal interpretation.

If there is a split in legal reasoning the Supreme Court *may* take up the issue.(The US supreme court is the "laziest court" in the entire world, they choose what they want to rule on and even then, they can decide not to rule on it or rule on issues not presented and so on ...) Even if the FISA and Second Circuit decisions diverge, the SC may not take up the issue. Even if they did take up the issue it will be moot when they finally hear it, so they probably won't take it up, because it will become moot in six months.

So, really the administration is arguing that FISA should ignore the second circuit as a circuit split will be moot before there is time to run up to the supreme court. However, what they don't count on is that mootness will not bar an action if there is a possibility that someone might use mootness to repeat an unlawful act. Now arguing that its an exception to mootness is difficult to pull off without diluting the strength of your appeal brief. So, for all intends and purposes the issue is moot if FISA agrees with the administration.

Flashbacks

[ckatko]

Remember when Dick Cheney declared himself to be his own branch of government so he wasn't subject to law?

Re:To all you Obama supporters

[dunkindave]

Now he's Asking a Secret Court to allow the Government to Break a Lawful Ruling that basically Affirmed that the Program was Unconstitutional.

WTF?

Not really break since the ruling is only binding on actions performed within the jurisdiction of that court's circuit, so legally the FISA court doesn't have to follow it, but each court tries to follow rulings by other courts unless they disagree with it. Obama is trying to convince them to disagree with it.

Stop calling it a court.

[jcr]

In a court of law, issues are argued by two sides before a neutral magistrate.

This FISA bullshit is nothing but a rubber-stamp circle jerk for government lawbreakers to pretend that they're on the up-and-up.

-jcr

Why is it that you guys still believe in Obama??

[Taco Cowboy]

Now why is Obama coming off like a puppet in these discussion and exactly how much dirt does the NSA and CIA have on him, to keep him so tightly on the leash from day one or is that day three

What the hell is wrong with you guys??

Obama has shown his true color to all of us, not one day, not one year, but for more than FIVE MOTHERFUCKING YEARS ALREADY and you guys STILL having that faint hope that, deep inside, Obama has a conscience?

Obama needs no leash from NSA / CIA / FBI, Obama is *ONE OF THEM*, and has been their *MOST VALUED SUPPORTER* all the while!!

Obama doesn't have even one single iota of conscience in him. The guy is a egoistical maniac. All he wants is POWER, and he intends to RULE OVER ANYTHING AND EVERYTHING

Please man, please open up your fucking eyes and look at Obama for what he actually is, not what you hope he to be