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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.
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.
This is true, but there would still be a huge contradiction in the law if the FISA courts ignore the Second Circuit. You'd have the FISA courts saying "Bulk surveillance is authorized under the USA Freedom Act for six months in the entire United States" versus the Second Circuit saying "Bulk surveillance is unconstitutional and any law authorizing it within the jurisdiction of the Second Circuit is void for that reason."
My guess is, if the FISA courts ignore the Second Circuit there will be a Supreme Court case on this, as tends to happen when you have conflicting authority at the appeals court level.
What you say may be technically correct, but it is impossible for the Supreme Court to consider the case. Because that would first require someone to have "standing" and the secret FISA system does not permit that. So our Kafkaesque so-called adversarial system has negated any possibility of reining in these star chambers and we no longer have rule of law and a government of the people, by the people, for the people.
Our rulers are so far over to the dark side that reclaiming our freedoms will be more difficult that blowing up a death star.
Note well, Republicans and Democrats are only slight variations on this odious evil.
Prove anything by multiplying Huge Number times Tiny Number
And you didn't pay very careful attention to my post.
I very carefully used the words "Court Order," because (as the summary points out) there is no Second Circuit order for him to disobey. There's a ruling, but rulings are where the Courts explains why it told you to do something, not where they tell you to do something. It is literally impossible to disobey a ruling that does not have an order attached because there's nothing in a ruling to disobey.
Why would the Second Circuit issue a ruling (likely to get a lot of press), but no order (rendering the ruling a prestigious op-ed)? Because they wanted to a) force Congress to act while b) putting Obama on notice that if something wasn't done they'd give him an order.
Since he and Congress did something they're not very likely to issue that order, and his request to the FISA Court for six more months is not a fuck you.