Monday, June 10, 2013

FISA Court Rules Domestic Spying Violates Constitution

Will The Real Mr. America Please Stand Up?
The Department of Just Us over in Stalingrad does not want an 86 page opinion of the FISA court released to the public.

Why that decision is so important, for one thing, is that whistleblowers are showing that the U.S. government has suffered a coup (A Tale of Coup Cities - 4).

The damage is incalculable, in that, as it ends up the Fourth Amendment has been stricken from the Constitution without a constitutional convention (The Queens of Stalingrad).

Here is the status of a FOIA lawsuit against the Department of Just Us to release the FISA court opinion to the public:
In the midst of revelations that the government has conducted extensive top-secret surveillance operations to collect domestic phone records and internet communications, the Justice Department was due to file a court motion Friday in its effort to keep secret an 86-page court opinion that determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying.
(Mother Jones, "[DOJ] Fights Release", emphasis added). The press and public found out about at least one opinion thusly: July 2012, Wyden was able to get the Office of the Director of National Intelligence to declassify two statements that he wanted to issue publicly. They were:
* On at least one occasion the Foreign Intelligence Surveillance Court held that some collection carried out pursuant to the Section 702 minimization procedures used by the government was unreasonable under the Fourth Amendment.

* I believe that the government's implementation of Section 702 of FISA [the Foreign Intelligence Surveillance Act] has sometimes circumvented the spirit of the law, and on at least one occasion the FISA Court has reached this same conclusion.
For those who follow the secret and often complex world of high-tech government spying, this was an aha moment. The FISA court Wyden referred to oversees the surveillance programs run by the government, authorizing requests for various surveillance activities related to national security, and it does this behind a thick cloak of secrecy. Wyden's statements led to an obvious conclusion: He had seen [at least one] secret FISA court opinion that ruled that one surveillance program was unconstitutional and violated the spirit of the law. But, yet again, Wyden could not publicly identify this program.
(ibid, Mother Jones). There is a government watchdog group that got wind of the court opinion and took action:
Enter the Electronic Frontier Foundation, a public interest group focused on digital rights. It quickly filed a Freedom of Information Act request with the Justice Department for any written opinion or order of the FISA court that held government surveillance was improper or unconstitutional. The Justice Department did not respond, and EFF was forced to file a lawsuit a month later.

It took the Justice Department four months to reply. The government's lawyers noted that they had located records responsive to the request, including a FISA court opinion. But the department was withholding the opinion because it was classified.
(ibid, Mother Jones, emphasis added). There is more to it which exposes that the left hand doesn't know what the right hand is doing:
EFF pushed ahead with its lawsuit, and in a filing in April, the Justice Department acknowledged that the document in question was an 86-page opinion the FISA court had issued on October 3, 2011. Again, there was no reference to the specific surveillance activity that the court had found improper or unconstitutional. And now the
"The Trial"
department argued that the opinion was controlled by the FISA court and could only be released by that body, not by the Justice Department or through an order of a federal district court. In other words, leave us alone and take this case to the secret FISA court itself.

This was puzzling to EFF, according to David Sobel, a lawyer for the group. In 2007, the American Civil Liberties Union had asked the FISA court to release an opinion, and the court had informed the ACLU to take the matter up with the Justice Department and work through a district court, if necessary.

So there was a contradiction within the government. "It's a bizarre catch-22," Sobel says. On its website, EFF compared this situation to a Kafka plot: "A public trapped between conflicting rules and a secret judicial body, with little transparency or public oversight, seems like a page ripped from The Trial."
(ibid, Mother Jones, emphasis added). The chattering doublspeak class in Stalingrad are talking about how legal it is to violate the Fourth Amendment.

So, it is important to have the FISA court decision made public so we can actually find out how legal or illegal government spying on Americans is.

UPDATE: The FISA court ruled (order is here) in favor of the EFF and said the opinion could be made public if the federal district wants it released pursuant to a FOIA lawsuit by EFF against the DOJ.

A word from a whistleblower, Mr. Snowden:

1 comment:

  1. Daniel Ellsberg of Pentagon Papers fame calls Snowden a hero: Link