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

To all you Obama supporters

[DoofusOfDeath]

Go Fuck. Yourselves.

Re:To all you Obama supporters

[geekmux]

Go Fuck. Yourselves.

Ah, tread carefully here.

That particular combination of words is trademarked and copyrighted by the Obama administration.

After all, it is their official motto.

Re:To all you Obama supporters

[Anonymous Coward]

Oh, was a magical third Bush term going to make this any better? Or a McCain or Romney administration? Why don't you address the actual problem instead of a symptom: our entire federal political machine. It only makes you look like a child when you just blame individuals in a system so hopelessly corrupt that the only presidential candidates presented in a general election anymore are already sold to the highest donors.

Disclosure: I think Obama has been a massive failure.

Re:To all you Obama supporters

[Grog6]

It seems we already are; with no reach-around...

He ran on the proviso that all the illegal BS we were doing would be shut down. (as well as the billion-dollar-a-day wars we were fighting...)

Instead, it's way beyond what was left to him by Bush.

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?

Re:To all you Obama supporters

[ckatko]

Dude, you realize half the people that voted for Obama did so to keep Sarah Palin out of office? What alternative did you think we had? A race between Obama VS a clone of George Washington, and we chose Obama because he's black?

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.

Re:To all you Obama supporters

[NicBenjamin]

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.

Just because a lawyer asks you to do something

[WillAffleckUW]

Doesn't mean it's right.

Or legal.

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.

[timrod]

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.

Re:Technically, they are correct.

[Tokolosh]

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.

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.

Re:Bend the Constitution for a while, please?

[Livius]

Is it really as dire as a civil war?

The 1% are trying to reduce the 99% to serfs. And succeeding.

What would you call 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

Re:Bend the Constitution for a while, please?

[Anonymous Coward]

Enslavement.

It's only a civil war once the slaves-to-be start fighting back.