FISA judges upset

This story came out a while ago and I haven’t been able to get to it until now. It seems, with the recent revelations of domestic spying being done by the Federal Government, the judges who granted the warrants are upset with the accusation of being nothing more then rubber stamps.

As you should know, Edward Snowden ((Edward Joseph Snowden)) released information regarding the levels of domestic spying being done by the National Security Agency and the various federal law enforcement agencies. People have always thought the government was spying on them, but the levels shown by Snowden were astronomical in their scope.

The agencies all claimed they went through the FISA court system and got the proper documents. However, those warrants were also classified and no one was aware of them other then the phone companies and certain social media companies. (Facebook, Google, etc) When those warrants were also released, people went ballistic. They gave the NSA and other agencies basically carte blanche to sweep up pretty much everything electronic on most of the people in the United States.

Needless to say, when people found out about this and finally began to understand what the FISA court was, they started accusing the judges of being nothing more then rubber stamps, granting pretty much anything the Federal Government wanted. Well, now some of those judges are complaining about how they are being perceived. Here are the details from the Washington Post.

Recent leaks of classified documents have pointed to the role of a special court in enabling the government’s secret surveillance programs, but members of the court are chafing at the suggestion that they were collaborating with the executive branch. A classified 2009 draft report by the National Security Agency’s inspector general relayed some details about the interaction between the court’s judges and the NSA, which sought approval for the Bush administration’s top-secret domestic surveillance programs. The report was described in The Washington Post on June 16 and released in full Thursday by The Post and the British newspaper the Guardian.

Read the article on STELLARWIND by the Post. One of the problems with Bush was the overly broad use of domestic surveillance. At the time, we had lost 3000 people and suffered easily a trillion dollars in physical and economic losses due to Islamic Terrorists. As operations ramped up, the military and intelligence services were capturing large amounts of data and hardware, such as computers and cell phones.

The NSA, which is supposed to track foreign communications, started tracking the phone numbers and emails from those captured sources. Some of those communications had an endpoint in the United States. Others, because of the way the technology worked, went through American networks even though they didn’t end or start within the United States.

When the NSA or other agencies found a number or email that was internal to the United States, (Either as an end point or a starting point), they are supposed to turn it over to the FBI and they are supposed to go through the FISA court for a warrant. That warrant is supposed to be very focused. That isn’t what’s been happening. Because of the recent revelations, it looks more and more like the courts were allowing a “Fishing expedition” rather then a focused investigation of a specific target. Now the FISA judges are trying to say this isn’t true.

U.S. District Judge Colleen Kollar-Kotelly ((Colleen Kollar-Kotelly)), the former chief judge of the Foreign Intelligence Surveillance Court, took the highly unusual step Friday of voicing open frustration at the account in the report and court’s inability to explain its decisions.

“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” Kollar-Kotelly said in a statement to The Post. It was her first public comment describing her work on the intelligence court.

Judge Kollar-Kotelly has a problem. She is bound by the secrecy of the FISA court and isn’t allowed to go into specifics. And this is also a problem. The founders of the United States would be aghast at the thought of a secret court with little to no oversight.

The inspector general’s draft report is among the many documents leaked by former NSA contractor Edward Snowden, touching off a roiling national debate about the proper balance between the government’s reach into Americans’ lives and the effort to protect the nation in the Internet age.

The document portrays the surveillance court as “amenable” to the government’s legal theory to “re-create” authority for the Internet metadata program that had initially been authorized by President George W. Bush without court or congressional approval. The program was shut down in March 2004 when acting Attorney General James B. Comey and senior leaders at the Justice Department threatened to resign over what they felt was an illegal program.

Now the actual details of what this was all about aren’t really known, however it looks like the original project was shut down and Bush went through the normal processes to get the authority to continue this. However, IIRC, the Main Stream Media published everything about this, even the programs that were fully in compliance with the laws and constitution for the simple reason they hated Bush. Since Obama took office? Chirping crickets is all we’ve heard out of them. Now, with the leaking of the IG’s report, it’s looking like that not only did this continue, it’s massively increased in the last few years. Judge Kollar-Kotelly denies this of course.

“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” Kollar-Kotelly said in a statement to The Post. It was her first public comment describing her work on the intelligence court.

Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.

“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.

Here’s the problem Judge. No one believes you. Furthermore, you are no longer part of the FISA court and haven’t been since the SCoaMF and his troop of happy goons took office. While you may have handled things differently under Bush, recent reports seem to indicate that the Rubber Stampers are merrily stamping away now.

Some critics say the court is a rubber stamp for government investigators because it almost never has turned down a warrant application. However, that high batting average doesn’t take into account changes the court requires in some requests and other applications that the government withdraws.

You mean changes like “No, you can’t go after 150 million American’s metadata, you can only go after 100 million.” Pull the other finger, it has a bell on it.

The perception that the court works too closely with the government arises in large part from the tribunal’s “ex parte” nature, which means that unlike in a traditional court, there is no legal sparring between adversaries with the judge as arbiter. Instead, a Justice Department official makes the case for the government agency seeking permission to carry out surveillance inside the United States. No one speaks for the target of the surveillance or the company that is ordered to allow its networks to be tapped or to turn over its customers’ data.

The inspector general’s report, combined with persistent refusals by the government to declassify the opinions, have left the public in the dark about the court’s legal justifications for approving the broad surveillance programs.

“The court is a neutral party, not a collaborator or arm of the government,” said one government official close to the court. “But the information out there now leaves people wondering how and why the court endorsed these programs.”

Horse Hockey! This court should not exist at all. The very fact that the judges on this court can’t seem to grasp this shows me that we have a major problem with the Judicial Branch of government. I think part of the problem is that law schools don’t actually teach the Constitution, they teach Constitutional Law. Basically they are teaching students about all the rulings made. Since a number of these rulings have literally reversed parts of the Constitution, and severely weakened other parts, it isn’t surprising that most judges today make rulings that would have had John and Sam Adams, Ben Franklin, George Washington and the other founders reaching for their muskets.

There is a very careful balance between security and safety. No one has any problem with spying on foreign governments and to some extent foreign nationals not in the United States. They aren’t covered by our constitution. However, we, The People, DO have an issue with a judicially authorized fishing expedition.

When the government wants to look at my information, I expect to receive a warrant, and have the ability to challenge it in a court of law. Because of FISA, this right has been taken away from me, and right there, tells me that FISA is not constitutional. Now for those who need a refresher in the 4^th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I would say that authorizing the Justice Department and the NSA to collect and dig through the metadata of pretty much everyone in the United States should be considered an “Unreasonable Search and Seizure” as written in the Constitution.

Recently, I wrote about just what mobile phone and computer metadata can actually show the government. You may want to review it, and then get on the phone to your representatives and berate them for allowing this to happen. They won’t listen of course, and will notify the Justice Department to start spying on you, but you might feel a little better.

Thatisall…for now.

~The Angry Webmaster~