A court that is supreme, in the sense of having the final say, but where arguments are only ever submitted on behalf of the government, and whose judges are not subject to the approval of a democratic body, sounds a lot like the sort of thing authoritarian governments set up when they make a half-hearted attempt to create the appearance of the rule of law.
It does sound like that. I agree. But so far as I can tell, even the the most strenuous credible arguments against the FISC don't argue that its judges have the "final say" over surveillance issues; FISC judges issue warrants which can be overturned by federal courts. The FISC isn't "supreme" and is in fact subject to the judgements of SCOTUS.
As I understand it, the warrant process used in domestic criminal law is also not adversarial, implying somewhat that the second part of the topic sentence of this graf might mislead.
Another error, this one more egregious:
None of the judges of the FISA court were vetted by Congress. They were appointed by a single unelected official: John Roberts, the chief justice of the Supreme Court.
Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
The article also cites sources selectively, which is unsurprising because it doesn't do any actual reporting but is instead an editorial analysis; so for instance it captures what the law professor who spoke to the New York Times believes, but misses what Orin Kerr, a GWU law professor and widely known expert on computer crime law (and, as I understood it, one of Weev's advocates at appeal), has said about the same process. Kerr has the (mis)fortune of not speaking through the prism of the mainstream media, but directly from his blog.
By way of bona fides, before I'm again asked how long I've worked for NSA: I think the FISC process is extremely bad and poses a long-term threat to civil liberties. But to read this article, you might come away with the idea that the solution would be to fix the FISC, when in reality what needs to happen is for Congress (which retains the authority to abolish FISC entirely) to establish some kind of bright-line rule about the limits of "foreign" surveillance (now that so much foreign traffic routes through the US) and to ensure that foreign surveillance is firewalled off from the rest of the government.
> I agree. But so far as I can tell, even the the most strenuous credible arguments against the FISC don't argue that its judges have the "final say" over surveillance issues; FISC judges issue warrants which can be overturned by federal courts. The FISC isn't "supreme" and is in fact subject to the judgements of SCOTUS.
You're wrong. How can the SCOTUS review a FISC decision if those decisions are never made public and if, upon challenge, the government can invoke the state secrets privilege. This is exactly what has happened in the past.
The supreme court doesn't hear cases unless there are two parties. It does not issue "advisory" rulings. But if the citizenry aren't allowed to know how the FISC interpreted the constitution, then how can we possibly object and challenge the interpretation before the SCOTUS?
Further, judges don't generally do a lot of constitutional interpretation when issuing warrants. They rely on precedent. If a judge were to step a bit outside of whatever precedent existed on a given topic (for whatever reason), the person against whom the warrant was to be served would later have the opportunity to challenge the warrant, and the constitutional interpretation that resulted in its issue. None of this is the case with the FISC. They are free to interpret the constitution however they see fit without any real possibility of their opinions being challenged or reviewed.
> Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
Nice try, but nope. Just about every Supreme Court justice has been a federal judge previously. Did that mean that there was no confirmation process? Not a chance.
Congress vetted these people to be federal judges, not members of a secret tribunal that makes secret constitutional interpretations that have the force of law and are effectively immune from further scrutiny.
I actually agree with you about the appointment issue --- in the sense that my guess is that FISC court appointment procedures mean it isn't an Article III court. But a couple problems with that for this line of argument:
* There are Article I courts; Congress is empowered to create tribunals for which the Article III appointment rules don't apply. Since the FISC is adjudicating policies that Congress is already empowered to legislate (the Constitution being as silent on foreign surveillance as it is on the makeup of the Air Force), not adhering to Article III doesn't automatically make the FISC unconstitutional.
* In trying to pursue my leg of this argument over the past couple days, I've been pretty well slapped down on the idea that appointment issues damage the Article III standing of the FISC:
I'm not really interested in whether the FISC is constitutional or not. My objection is that you appeared to discount the popular outrage over the FISC. This is actually one of the reasons I didn't go to law school, I'm much more concerned with whether something is good, sound policy than whether it is technically constitutional or not. Just as "legal" and "moral" or "right" are different beasts, so too are "constitutional" and "smart" or "justified".
I am not smart enough to understand what this objection means. A stab at a response: perhaps you're not aware that there are Article I courts as well as Article III courts.
"You're wrong. How can the SCOTUS review a FISC decision if those decisions are never made public and if, upon challenge, the government can invoke the state secrets privilege. This is exactly what has happened in the past."
This is not correct.
50 USC 1803(b) specifically provides that the record will be transmitted to SCOTUS upon write of certiorari.
There have been non-parties that have attempted to get access to the rulings, and those have been denied.
" But if the citizenry aren't allowed to know how the FISC interpreted the constitution, then how can we possibly object and challenge the interpretation before the SCOTUS?"
The injured party would normally file a writ of certiorari with SCOTUS after losing in FISC. This is specifically provided for.
> 50 USC 1803(b) specifically provides that the record will be transmitted to SCOTUS upon write of certiorari.
1803(b) provides that the Foreign Intelligence Surveillance Court of Review will do that if the government appeals the denial of a surveillance warrant by that court (which would itself be on the government's appeal of a denial by the FISC) to the Supreme Court.
> The injured party would normally file a writ of certiorari with SCOTUS after losing in FISC. This is specifically provided for.
Not in the provision you point to, which is exclusively for government appeals of denials of warrants in non-adversarial proceedings, they don't provide any "injured party" any appeal path (and the process they apply to is one that an "injured party" would never be aware of in the first place.)
> Nice try, but nope. Just about every Supreme Court justice has been a federal judge previously. Did that mean that there was no confirmation process? Not a chance.
If you read the Appointments Clause, you'll find that the only judges explicitly called out that must go through the advice and consent process are Justices of the Supreme Court. So, while that's true, it doesn't really support any kind of broader argument by analogy.
> FISC judges issue warrants which can be overturned by federal courts.
The only review process for FISC orders is for denials of petitions for surveillance. See, generally, 18 USC § 1803, and particularly subsections (a) and (b); and where that process does extent beyond the special courts set up under FISA (the Foreign Intelligence Surveillance Court and its big brother the Foreign Intelligence Surveillance Court of Review), it goes directly and solely to the US Supreme Court; usually, one does not refer to something that is reserved solely for the Supreme Court as belonging to "the federal courts".
Even if there was a process for reviewing approved petitions, the only people who will know about a petition being approved are the judge issuing it and the executive officers applying for it, so no one who would be interested in challenging an order is going to know that it exists to be challenged.
Happy to be reading you in another thread. Questions:
* How does this process differ from domestic criminal law?
* What enforcement mechanisms does FISC have, and might those methods involve transactions with the federal courts in general?
* Doesn't Google have standing to sue the USG in addition to petitioning the FISC (in the manner, for instance, described by the Yahoo disclosure the NYT ran a couple weeks ago)?
* Similarly, don't the electronic providers have ways to engage the federal courts on the issue of gag orders?
I concede what I perceive to be your fundamental point, which is that regardless of the process used by FISC, the setting in which it operates makes it difficult as a practical matter for any other court to oversee their actions. But then, I wonder whether that's because in domestic criminal law, warrants are mostly confronted as a consequence of the exclusionary rule, and thus involves named defendants.
> How does this process differ from domestic criminal law?
Warrants in domestic criminal law are targeted at gathering evidence to be used in adversarial legal proceedings in which the target will have the opportunity to see the evidence against him and challenge its providence. And, because of the exclusionary rule, succesfully challenging the validity of the warrants in those adversarial proceedings can nullify the value to the executive of the warrant and the gathered evidence. This encourages circumspection on the part of the government in seeking warrants, since misrepresentation in the course of seeking the warrant can backfire when they attempt to use the evidence, even though the warrant process itself is non-adversarial.
This is decidedly not the case with FISA warrants; information gathered through them is, by design, principally supports extrajudicial action rather than adversarial legal proceedings. As such, there is little constraint on the executive with regard to FISC warrants.
> What enforcement mechanisms does FISC have, and might those methods involve transactions with the federal courts in general?
FISC warrants (what is at issue here) do not have enforcement mechanisms, as they are simply permission for the executive to engage in surveillance.
> Doesn't Google have standing to sue the USG in addition to petitioning the FISC (in the manner, for instance, described by the Yahoo disclosure the NYT ran a couple weeks ago)?
Not with regard to FISC warrants. Perhaps with regard to pen registers and trap-and-trace orders under FISA, issued by a judge (or magistrate judge) of the FISC, but those are distinct from surveillance warrants.
> Similarly, don't the electronic providers have ways to engage the federal courts on the issue of gag orders?
If you refer to the gag order that is mandated by FISA with regard to any pen register and trap-and-trace orders issued under FISA -- see 18 USC § 1842(d)(2)(B)(ii)(I) -- other than challenging the constitutionality of FISA itself, there doesn't seem to be much room to engage on that issue.
* If the information obtained from the FISA process is useful exclusively in extrajudicial activity (or, perhaps more accurately, activities in the bailiwick of Article II) and can't effectively be deployed against citizens in criminal proceedings (not least because to do so would open up a can of worms regarding new standing to challenge FISA), AND the FISA process is targeted exclusively at foreigners and collects substantial information about citizens but only inadvertently, what injury is being inflicted on Americans?
That's a fuzzy question. Two specific ones:
* You say FISC warrants have no enforcement mechanisms and are exclusively permission for NSA to engage in surveillance. But the FAA 702 process has FISA engaging directly with American corporations. NSA appears before the FISC to obtain a 702 certification, which is nonadversarial and extremely unlikely to fail because a certification describes a target and FISA only allows targeting of foreign nationals. But once that process finishes, NSA gains from the 702 certification the ability to issue 702 directives, which compel Google to act. How does FISC enforce that action? If Google refuses, petitions FISC (as Yahoo did), loses (inevitably), and then refuses, what then? That's what I was thinking when I asked about enforcement.
* Why can't Google simply challenge the Constitutionality of the FAA 702 directive nondisclosure requirement? Didn't Google (or Microsoft, I forget which) just threaten to do exactly that?
> If the information obtained from the FISA process is useful exclusively in extrajudicial activity
FISC warrants are a subset of the FISA process; lets not drift.
> (or, perhaps more accurately, activities in the bailiwick of Article II)
I'll stand by my initial wording. It may or may not be that some or all of the extrajudicial action that is taken based on surveillance authorized under FISC warrants is also properly within the bounds of the executive's Article II powers (to the extent that action is, it may be Constitutional, but that still doesn't, in and of itself, make it a net social good.)
Its also not exclusive use, but the primary use. That it has other secondary uses, because those uses are incidental rather than the motivation for the surveillance, does not substantially constrain government action in pursuit of FISC warrants.
> and can't effectively be deployed against citizens in criminal proceedings (not least because to do so would open up a can of worms regarding new standing to challenge FISA)
It can be effectively deployed against people (including, but not limited to, citizens) in criminal proceedings, especially when the specific person isn't the subject or target of the surveillance.
> AND the FISA process is targeted exclusively at foreigners and collects substantial information about citizens but only inadvertently
The absence of effective constraints in the FISC warrant process is precisely why we cannot trust this to be the case.
> what injury is being inflicted on Americans?
Well, that question assumes a whole lot of stuff that you just interjected into the discussion and that I don't (as noted above) agree is reasonable to assume.
> You say FISC warrants have no enforcement mechanisms and are exclusively permission for NSA to engage in surveillance. But the FAA 702 process has FISA engaging directly with American corporations.
The FAA 702 (50 USC § 1881a) process is not a warrant process. Its actually one of the least problematic FISC related processes, since it actually provides for adversarial process, unlike the FISC warrant process for physical or electronic surveillance.
> How does FISC enforce that action?
Through its contempt powers.
> Why can't Google simply challenge the Constitutionality of the FAA 702 directive nondisclosure requirement?
It can be effectively deployed against people (including, but not limited to, citizens) in criminal proceedings, especially when the specific person isn't the subject or target of the surveillance.
I agree, but at that point aren't we talking about a federal criminal case held before a normal federal court?
(Incidentally, the reform I'd like to see is bright line restrictions against using the products of foreign intelligence to make domestic criminal cases.)
I worried the first question I asked might be too fuzzily worded to properly answer and now think I was right. Moving on:
If the only way the FISC can enforce orders and warrants is through its contempt powers, can't the subjects of those orders, ie a corporation held in civil contempt by FISC, appeal that? Doesn't that eject the process from FISC?
I'm trying to engage with the notion that the FISC is a black hole that moves the entire question of domestic surveillance coerced from US companies to a parallel court system.
> I agree, but at that point aren't we talking about a federal criminal case held before a normal federal court?
But at that point the surveillance generally can't be effectively challenged, since information obtained illegally in violation of someone else's rights isn't excluded from criminal cases.
> If the only way the FISC can enforce orders and warrants is through its contempt powers,
The FISC doesn't enforce warrants at all, as we've already discussed. The contempt answer was specifically about 702 orders. Please stop trying to rewrite the discussion.
> can't the subjects of those orders, ie a corporation held in civil contempt by FISC, appeal that?
Sure, they can appeal from FISC to the higher FISA court, the Foreign Intelligence Surveillance Court of Review, and from there to the Supreme Court.
> I'm trying to engage with the notion that the FISC is a black hole that moves the entire question of domestic surveillance coerced from US companies to a parallel court system.
It'd probably be more effective to engage with that idea by responding to someone embracing it.
FISC warrants certainly have an enforcement mechanism - FISC allows for show cause and other motions to force compliance.
also
"Not with regard to FISC warrants. Perhaps with regard to pen registers and trap-and-trace orders under FISA, issued by a judge (or magistrate judge) of the FISC, but those are distinct from surveillance warrants."
If by "FISA warrant", you mean production orders or surveillance orders to electronic providers, this is wrong.
See 50 USC 1861(f) and 50 USC 1881a(h)
Both make clear, as do the FISC rules, that FISA warrants and production orders may be challenged in FISA court by a party.
If by FISA warrants, you mean something the government can do on it's own without the help of anyone else, then yes, you are correct, you would have to challenge this when they use the info against you.
> FISC judges issue warrants which can be overturned by federal courts
How? EFF and ACLU have tried that a few times, and they've been rejected by federal Courts either because "they had no standing" - and they can't get standing because they can't get the proof whether they're being spied upon or not because the government keeps it secret (and has rejected all FOIA requests for it), or because the government appealed state privileges.
They've made it in such a way that it it's almost impossible to do it without someone actually leaking all this stuff out. Even Ron Wyden, who was in the intelligence committee didn't know all the facts, and even if he did, he couldn't even tell it to the rest of the Congress.
Everything about this whole process was air tight, so you can't appeal it in any way, or stop it. I've watched the FISA Amendments Act voting. All the Congress heard about it was that "it's necessary to protect against terrorists, so vote for it". And Ron Wyden and a few others said it's being abused, but couldn't say much else.
> FISC judges issue warrants which can be overturned by federal courts. The FISC isn't "supreme" and is in fact subject to the judgements of SCOTUS.
I admit this thought crossed my mind as well when I read the article. But then I realized that federal court review of FISC decisions doesn't mean much when there is nobody to appeal the decisions of FISC to those federal courts.
The FISC warrants hearings are ex parte, and the vast majority of them are granted. The government won't appeal their victories. They probably don't appeal their losses either, electing instead to refine their evidence and apply again in that sliver of cases where their initial warrant request is denied.
For all practical purposes, then, FISC is supreme. With no mechanism for their decisions to reach the normal federal court system, their secret decisions stand unchallenged and those secret decisions stand as precedent for future cases that come before FISC.
A question for someone more familiar with federal courts than I: can higher federal courts review the decisions of lower courts without any party making such a request, or must cases reach higher courts only on appeal?
The FISC is de-facto supreme. Due to the secrecy of its subject matter and rulings, nobody can prove standing to sue in the first place, so it's impossible to challenge it in practice.
This doesn't make any sense.
Constitutional injury does not occur because a judge interprets the law.
Constitutional injury occurs when the government does something to you.
If the government is the one surveilling you, you challenge that, and then you have standing.
All existing decisions i'm aware of (except the one in the past few days), even the SCOTUS one, dealt with third parties making claims that they were "likely being surveilled".
None of them could prove anything, because nobody has used the info against them.
SCOTUS held that they could not establish standing, because they couldn't show it was actually happening.
The parties wanted abrogation of the state secrets privilege to get the government to admit or deny whether they were being surveilled.
IE It wasn't known surveillance targets suing, it was "a group of international organizations, lawyers, and media personnel"
If you have a case where someone who was surveilled has been denied standing, i'd love to see it.
So far, Jewell has not been denied standing in Jewell vs. The NSA
Which is why, basically, the parent's comment is correct. In essence, you're both right, but his issue of standing, as a practical matter, is almost certain to be true.
If surveillance is done against me, and nothing is found, then I never hear about the incident, even if it is wholly unconstitutional. If unconstitutional surveillance is done against me, and something is found, but the government keeps the source of that information secret, then the evidence is not challengeable. In an ordinary court, that would be a problem, but if I'm thrown into Guantanamo without an arraignment, trial or anything else, it does me little good.
Even if I somehow find my way to trial, it'll almost certainly be a military tribunal, where the rules of evidence are different enough then the evidence might stand, even if its sources are not disclosed by the government. If the sources aren't disclosed, I can't know whether the evidence was obtained as a result of a FISC decision or action, which does me little good.
The only way for a citizen to have standing in an action as a result of Prism activities is for the government to arrest me through normal channels, which would be surprising, if their information has revealed that I am likely to be a terrorist (JIHAD!), imprison me in a 'normal' jail, then to allow me access to an attorney in lieu of interrogations, then allow me a trial wherein the remove the veil of secrecy over the source of the evidence.
If all of those unlikely events occurred, then you're right, one would have standing whether or not one was found guilty, as either a civil matter if acquitted or appellate matter if convicted, but getting to there seems like small odds to me. And on top of all that, if you're going in on appeal, then the circumstances pertaining the constitutionality of the evidentiary source is polluted by all those other criminal facts of the case.
Apparently you have a non-standard definition of "surveilled"; perhaps the one James Clapper uses? The leaked Verizon FISA order clearly shows that practically everyone in the US has been surveilled by the NSA (every Verizon customer, and everyone who has ever called a Verizon customer). That means everyone has standing, and everyone whose standing was previously denied was wronged.
But suppose the leak hadn't happened. Suppose the government kept secrets perfectly, and nobody could establish standing. Is your position really that the government should be able to violate the 4th amendment as much as it wants, as long as it's kept secret?
This is your assertion, not the current precedent.
I am objectively talking about the current precedent and what it states, not what my definition or my position is.
Do not confuse the two.
Under current precedent, the answer to your questions are "No, not everyone in the US has standing" and "Yes, if they keep it secret enough that you can't prove it, you are fucked", at least given what SCOTUS has said.
At least the latter question has been almost directly answered by SCOTUS. I may disagree, but that is the current law of the land.
Congress could, of course, change that (as could SCOTUS)
You're not talking objectively about current precedent. There isn't sufficient precedent on whether the definition of "surveilled" includes something like the recently revealed FISA order to draw the conclusions you have. Precedent can't have been set because the extent of the program wasn't previously revealed. It is literally unprecedented.
Anyway, I didn't ask what current precedent was, I asked what your position is.
"There isn't sufficient precedent on whether the definition of "surveilled" includes something like the recently revealed FISA order to draw the conclusions you have. "
???
Actually, SCOTUS was pretty clear, see Clapper v. Amnesty International. If you can't prove they are surveilling you, you don't have standing.
I'm not sure where you get "precedent can't have been set". This is just wishful thinking. You are hoping they decide their previous precedent was dumb or distinguishable.
As for my position: To the degree a court is satisfied with that the leaked info shows a plaintiff has suffered constitutional injury, they will override state secrets privilege and grant them standing. That is what has happened so far. See Jewell vs. NSA
To the degree they don't already have the info, and the rest is properly classified (already held to be 'yes' many times), they won't.
That will be appealed by either side all the way up the Supreme Court.
There are likely enough votes to hear it, and at least right now likely enough votes to overrule/distinguish Clapper, but until that happens, you are stuck.
Clapper v. Amnesty International is not precedent for the constitutionality of the recently revealed surveillance. It's irrelevant now because surveillance is proven, not hypothetical. Besides, it was 5-4, hardly ironclad.
Furthermore, to the extent that Congress hid actual violations of the constitution behind secrecy laws, the judicial branch has failed in its duty to uphold the constitution. SCOTUS was wrong to deny standing. Protecting our constitutional rights shouldn't require breaking the law just to prove standing first. You seem incapable of expressing a position or opinion about what the courts should do, rather than what they will do or have done, so you'll undoubtedly disagree.
I am not incapable of expression a position, I just don't find it a useful exercise of anything in particular in this instance. You seem a bit annoyed at this, for reasons i can't understand.
If you don't want to know what they are likely to do, why bother asking me rather than anyone else on the street?
The only thing you'll discover is whatever personal beliefs i have about the subject. Since they don't really matter to what will happen, who cares?
It won't help anything. I'd rather be doing things to help than complaining about how the court is wrong on an internet site (no offense meant to you, really!), so I am.
Modeless, you are right. This court should be subject to the full light of day and a true adversarial process. All opinions published. With judges having to put their names on the opinions and own up to them.
The same can/should be said for "unpublished opinions"[1] of any court. I do not understand how in a common law system a judge can make a ruling and say "I don't want to be held accountable for this rash decision I just filed. Let's mark it unpublished and make sure it never has to undergo much scrutiny."
> None of the judges of the FISA court were vetted by Congress. They were appointed by a single unelected official: John Roberts, the chief justice of the Supreme Court.
> Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
The original author (Will Wilkinson) seems to be making a rebuttal against that point in his reply here:
The rebuttal is technically true but not much of a rebuttal.
Congress wrote the rules that makes serving on the FISC and FISCR, on assignment by the Chief Justice of the Supreme Court, part of the duties of judges of the district and circuit courts, and the Senate was aware of those rules when it confirms judges to those courts. So, with the possible theoretical exception of any FISC and FISCR judges who were confirmed to their current district or circuit court seats before FISA was adopted in 1978 -- there aren't any actual examples now, though obviously there have been some in the past, and there aren't new opportunities being created -- all FISC and FISCR judges were appointed by the President and confirmed by the Senate to a position from which availability for additional assignment to the FISC and/or FISCR was, under law at the time of their appointment, part of the position.
There are currently over 600 district court judges compared to a total of 11 judges assigned to the FISA court. In order for Congress to actually vet FISA court judges, they would have to vet every single district court judge for suitability as a FISA judge, even though it's vanishingly unlikely they'd ever serve as one.
What's more, if as little as 1 in 100 of the judges they let through were unsuitable, those judges could make up the majority of the FISA court and there's nothing Congress could do about it.
> What's more, if as little as 1 in 100 of the judges they let through were unsuitable, those judges could make up the majority of the FISA court and there's nothing Congress could do about it.
You seem to be ignoring the fact that Congress wrote FISA and can change it any time they want to, so "nothing Congress could do about it" is, well, completely wrong.
> You seem to labor under the misapprehension that Congress is capable of undoing its own horrible mistakes.
Its capable, if it wants to.
If it doesn't want to, the problem isn't "nothing Congress can do about it". Its that Congress is content with the results and uninterested in doing anything about it.
I'm pretty sure that if Congress did in fact vet each person appointed to the FISC, that at the very least there would be a more bipartisan makeup of the judges on the FISC instead of being overwhelmingly Republican. Unfortunately, it still wouldn't be adversarial, but the presence of bipartisanship would at least help prevent groupthink and mitigate the expediency at which the court can damage our democracy.
>As I understand it, the warrant process used in domestic criminal law is also not adversarial, implying somewhat that the second part of the topic sentence of this graf might mislead.
No. What you're missing here is that he is not speaking about the FISA court's warrant process being non-adversarial. He is saying that the process by which laws and permissions are being extended to the NSA/government is based solely on the representations of the government, without rebuttal. That's what's non-adversarial.
It's a huge distinction. Effectively, laws are being created based solely on the statements of the government. The example he gave:
In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the "special needs" doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.
The only thing the FISC is empowered to do is to grant warrants and certifications to intelligence services. My point was, domestic criminal warrants work the same way: they're non-adversarial and often secret.
I'm having a hard time understanding how we make the jump from "warrant" to "law". The word "law" connotes a huge sweep of authority that the FISC simply doesn't have.
As a reminder: the Fourth Amendment doesn't protect foreigners abroad; the Constitution covers people on American soil, and American citizens abroad, and that's it. There's a robust meme on HN that the USG is bound by the Constitution when dealing with (say) Malaysians. It simply isn't. The distinction is important because the FISA process pertains exclusively to foreign intelligence. The FISC has no authority to authorize deliberate surveillance of American citizens.
I'm having a hard time understanding how we make the jump from "warrant" to "law". The word "law" connotes a huge sweep of authority that the FISC simply doesn't have.
I think the point is that, since there are no appeals from the FISC proceedings, a changed interpretation on the part of that court (what Senators Wyden and Udall alleged to have occurred) is effectively a change in the law.
First, there are appeals from the FISC proceedings; there's a FISCR review court, and like any proceeding of the US Government FISC is subject to the oversight of SCOTUS.
Second, what are you thinking when you think about changes to the law? What are the contours of the changes you're imagining are created by FISC precedent? Maybe we don't disagree at all, or maybe we're football fields apart in our understanding of what FISC precedent can actually do.
1. In a non-adversarial situation, appeals will only ever go one way, so they'll act as a ratchet, in this case always giving the surveillance apparatus more of what it wants. In practice, the government won't appeal either; they'll just take more bites at the apple. (Yeah, that guy we wanted to surveil last week but you didn't let us? This week we still want to surveil him and we've addressed your previous objections. Sign here please.) So, what FISC says, goes.
2. I suppose I'm speaking of "The Law" in general terms, in that I don't imagine that FISC takes a red pencil to particular sections of the United States Code. However, "code" is a bit of a misnomer, because it's never "compiled". Instead, relevant terms that govern e.g. what circumstances justify a particular finding are interpreted in mostly consistent ways. The law effectively changes when those interpretations change. As a more specific example of this, I think Senators Udall and Wyden have been pretty clear in their accusations, at least recently. If you don't find their complaints compelling, why not?
"Instead, relevant terms that govern e.g. what circumstances justify a particular finding are interpreted in mostly consistent ways. The law effectively changes when those interpretations change"
This is exactly what I (and the article) meant as well. Likewise Udall and Wyden.
That is, when the court creates new interpretations of existing laws (and the Constitution itself, as in the example), then it is effectively creating new laws. Of course, these are not laws in the sense that Congress passes them. Instead, these become "precedent" to the extent that future rulings can rely upon them.
Now, such interpretation is a "normal" thing that is done out in the open with, for example, The Supreme Court. Of course, there are two (adversarial) parties when this happens.
But, when this (secret) court is carving out these new interpretations of Constitutional law based solely on the assertions of the government (i.e. without adversarial debate), then we have a very big problem.
So, I would also be interested in hearing why the parent doesn't find Wyden's and Udall's complaints compelling.
> There's a robust meme on HN that the USG is bound by the Constitution when dealing with (say) Malaysians. It simply isn't.
That's because it well should be. I don't think anyone asserts that it is legally obligated to today, but if we are to maintain a globally competitive internet industry we must start at least making the appearance that we respect the privacy of all those filthy foreigners.
> By way of bona fides, before I'm again asked how long I've worked for NSA
I hate that you have to make that disclaimer. I think the attitude that only people who have a vested interest in the current system could possibly not agree completely with the group think is part of the reason why privacy advocates have so little political clout.
It's really easy to convince yourself that the system is irredeemably broken and any attempts at change are futile when you can't acknowledge that people might have legitimately different opinions on the subject than what you and your friends personally believe. You can't find common ground with others if you reject offhand differences in how they approach a given problem. And when you can't find common ground with others, you'll never have any impact in a democratic society.
Ordinarily, I wouldn't. I don't think I should have to pass an ideological purity test to put forward a descriptive argument about how FISC works.
But I found this article because Paul Graham twerped (approvingly) about it, and bothered to comment because HN was an easier place to disagree with him about the quality of the article than Twitter.
In doing that, I didn't want the thread to become a gigantic pointless fight about who does or doesn't support the surveillance state. It was a courtesy, is all.
It is perfectly reasonable to maybe make one comment saying "I think congress should just abolish this abomination, and be done with it" would be a measured response to this side-issue. Spending a lot of energy arguing about the acceptability of the FISA spying on foreigners or not having any adversarial component just probably riles up people who are understandably very upset at the larger situation. I guess what I'm saying is having a long argument about all this is like being the political version of a grammar nazi.
Using poor grammer usually just makes you look uneducated. Misunderstanding the structure of a potentially problematic situation makes you powerless to solve it, and makes it easy for people on the other side to dismiss your concerns.
> what needs to happen is for Congress (which retains the authority to abolish FISC entirely) to establish some kind of bright-line rule about the limits of "foreign" surveillance
So, I agree. And as much as I find many/most aspects of the FISC to be deeply problematic, the existence of the FISC has in the past few days been a boon (probably for the first time that I am aware). Basically, state secrets claims were rejected because the FISA court's existence displaces such claims. (This is an oversimplified read, and IANAL.)
From the opinion (Do I get to say "FTFO" for the first time ever?) [1]:
> "The Jewel Plaintiffs move for partial summary adjudication seeking to have the Court reject the Defendants’ state secret defense by arguing that Congress has displaced the state secretes privilege in this action by the statutory procedure prescribed by 50 U.S.C. § 1806(f) of the Foreign Intelligence Surveillance Act (“FISA”)."
> "... the Court GRANTS Defendants’ motions to dismiss Plaintiffs’ statutory claims on the basis of sovereign immunity"
> As I understand it, the warrant process used in domestic criminal law is also not adversarial
Not entirely true. The issuance of the warrant is not adversarial. However, due to the exclusionary rule, a warrant can be overturned after the fact. Not only does this exclude evidence obtained from the warranted search, it also provides an incentive for police and judges to maintain high standards for warrants. Thus, there is a strong adversarial component in the process, and it's an essential one.
> Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
But Congress has not had a chance to downvote their appointment to the FISC. How can we assume that every judge whom Congress deems fit for the federal bench would also be approved to join the FISC, were the question put to Congress?
If Congress is uncomfortable with the current makeup of the FISC, the same vote that would confirm or deny an individual judge could reconstitute the entire court. FISC is some sense an instrument of Congress. To the extent that it's an Article III court (I still contend it might not be), FISC even avoids the issue of judge tenure because its judges are part-timers who already sit on the federal bench. Unlike the federal court system, Congress has near total authority over FISC.
> If Congress is uncomfortable with the current makeup of the FISC, the same vote that would confirm or deny an individual judge could reconstitute the entire court.
Well, not the same vote, since confirmation is by the Senate, and rewriting FISA takes both houses.
It's a higher bar to reconstitute the court than to block a judicial nomination, though. The former would require both houses to pass the bill, and either the President's signature or a veto-proof majority. For the latter, all you need is 40 senators to filibuster. A much, much easier thing to do.
But your larger point is well-taken: FISC exists because Congress at one time willed it so. Still, it's not unreasonable to criticize Congress for willingly divesting itself of power to the advantage of other branches of government.
In any case, the main issue isn't Congressional authority. It's the one-sided nature and absence of a workable appeals process. Speaking of which:
> To the extent that it's an Article III court (I still contend it might not be)
I would go so far as to say that it's barely a court at all. More like a panel of judges. Is it a court if it hears no controversies and effectively operates outside the system of review by higher courts?
This deserves a very hard look. I'm not casting doubt on the integrity of the FISC judges. But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts, to develop a bias over time. No matter how much faith you have in the integrity of judges, it seems unwise to arrange things such that only one party has their ear.
One might object that regular judges issue warrants on a daily basis without hearing from any opposing party. However, those warrants are subject to challenges after the fact, and judges are aware of this. The ever-present threat of a warrant being ruled improper serves as a silent counterbalance when the warrant is requested.
> I would go so far as to say that it's barely a court at all. More like a panel of judges. Is it a court if it hears no controversies and effectively operates outside the system of review by higher courts?
It doesn't effectively operate outside of the system of review by higher courts, its just that, since the proceedings are non-adversarial, the only review likely is of decisions that are adverse to the government, which are made unlikely, since there is no constraint on the government's ability to -- even assuming no deliberate misrepresentation -- present information selectively in the initial application.
> But it would only be natural for an entity like FISC, which serves the government alone and has effectively no oversight from higher courts
FISC has a higher court (the Foreign Intelligence Surveillance Court of Review) which exists solely to provide oversight for it; FISCR is itself overseen by the Supreme Court.
What the FISA process is missing isn't oversight by higher courts, which it incorporates already, but an advocatus diaboli.
The FISA process concerns surveillance of foreign nationals who enjoy extremely limited constitutional protections.
People are fond of pointing out that the government rarely loses at FISA hearings. But as it turns out, of course, the government also rarely loses when it files for domestic wiretap authority. Relative to other transactions investigators and prosecutors have with the courts, the process of obtaining authority to wiretap is extraordinarily difficult; prosecutors don't waste time doing wiretap paperwork if they're not sure the request will be granted.
Two different processes, neither of them adversarial, both of them secret, both of which produce an authority to surveil people. My question: why would the process that surveils foreigners without Fourth Amendment rights require a devil's advocate, when the domestic wiretap process has no such mechanism?
I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one.
> My question: why would the process that surveils foreigners
Right here is the fundamental problem. The lack of effective constraints in the FISA process (and we've already discussed, in this thread, why the domestic process targeting criminal action, despite superficial similarity, has stronger incentives for government restraint than the FISA process) is exactly why we cannot trust that it only surveils foreigners (it is intended to do that, but absent effective constraint there can be no confidence that it is used as intended.)
> I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one.
Sure, from the perspective of constraint, a synthetic adversary is worse than a real one, and selecting a synthetic adversary in a manner which makes it an effective constraint is tricky, but getting a real adversary into the foreign intelligence surveillance warrant process is, well, difficult to do without serious negative consequences.
I submitted a comment a few minutes ago to this effect, but it's as if it never happened, so here goes again. If it should reappear, please forgive the double-posting.
> The FISA process concerns surveillance of foreign nationals who enjoy extremely limited constitutional protections.
It's unclear, from the public's perspective, that FISA warrants are only being directed against foreign entities.
> People are fond of pointing out that the government rarely loses at FISA hearings. But as it turns out, of course, the government also rarely loses when it files for domestic wiretap authority. Relative to other transactions investigators and prosecutors have with the courts, the process of obtaining authority to wiretap is extraordinarily difficult; prosecutors don't waste time doing wiretap paperwork if they're not sure the request will be granted.
Two different processes, neither of them adversarial, both of them secret, both of which produce an authority to surveil people. My question: why would the process that surveils foreigners without Fourth Amendment rights require a devil's advocate, when the domestic wiretap process has no such mechanism?
I hate to keeping beating this horse. But the argument that domestic warrants are equally non-adversarial keeps coming up. So I guess the horse isn't dead. Domestic warrants are part of an adversarial process, if only after the fact. They are typically used to gather evidence for a criminal prosecution. When that happens, the defendant has a right to challenge the warrant. This serves as a counterbalance. Judges, prosecutors, and police know that a bad warrant will likely be thrown out if the criminal case is brought to trial. Thus, they have a very real incentive to write good, defensible warrants. This means it's to their advantage to keep their warrants narrow in scope. And thus the goal of preserving privacy is served.
> I ask in part because I think synthesizing an adversary is unlikely to create a meaningful restraint; a synthetic adversary doesn't have the same incentives as a real one.
Do you mean that there aren't incentives for the opponent of the warrant, or for the government?
If the former, I can only point out that organizations like the ACLU can be quite zealous. I would much prefer advocacy by the ACLU than no advocacy at all.
If the latter, the restraint would take two forms. First, judges and investigators would be aware that overbroad or otherwise improper warrants can be undone. This would incentivize writing good warrants. Second, the warranted surveillance could be halted upon a successful challenge, assuming said surveillance is ongoing. Both of these are meaningful checks.
Why should we need a Snowden to remind us what the law permits, though?
Any government will need to maintain secrets of some kind, for much the same reasons why people need to maintain privacy from each other. Secrecy isn't only needed for espionage, after all, so if your hope relies on eliminating secrecy completely then I would suggest getting used to the surveillance state...
The FBI should be forbidden to use information obtained through the FISA process to make criminal cases, and evidence that can be traced causally to FISA information should also be excluded as fruit of a poisoned tree.
What we should do is fix the incentives. If we want to restrict the targeting of mass surveillance to foreign entities, we should (and could) turn information on citizens gained from FISA into legal hazmat; any evidence a defense team could generate that an FBI investigator got their fingers into FISA data to help a case would/could/should create a huge hassle for the AUSA in court.
If there's some other use we're worried about the USG putting NSA surveillance to, we should identify that specific use, identify the incentives behind that use, and fix the incentives.
> The FBI should be forbidden to use information obtained through the FISA process to make criminal cases, and evidence that can be traced causally to FISA information should also be excluded as fruit of a poisoned tree.
That would be an airtight plan if both cops and the intelligence community weren't fundamentally professional, state-sponsored career liars.
As long as it's secret, they can just deny using it, make something else up, and seek a normal warrant like nothing happened (with PC they never would have had without illegal surveillance).
For example, do you really think an organization like the Black Panthers could come to exist in this sort of environment? How about SDS? How about Occupy?
More importantly for rich white men such as us: how about a third party?
It does sound like that. I agree. But so far as I can tell, even the the most strenuous credible arguments against the FISC don't argue that its judges have the "final say" over surveillance issues; FISC judges issue warrants which can be overturned by federal courts. The FISC isn't "supreme" and is in fact subject to the judgements of SCOTUS.
As I understand it, the warrant process used in domestic criminal law is also not adversarial, implying somewhat that the second part of the topic sentence of this graf might mislead.
Another error, this one more egregious:
None of the judges of the FISA court were vetted by Congress. They were appointed by a single unelected official: John Roberts, the chief justice of the Supreme Court.
Of course, this isn't actually true; every sitting FISC judge was approved by the Senate, since FISC judges are appointed from the federal bench.
The article also cites sources selectively, which is unsurprising because it doesn't do any actual reporting but is instead an editorial analysis; so for instance it captures what the law professor who spoke to the New York Times believes, but misses what Orin Kerr, a GWU law professor and widely known expert on computer crime law (and, as I understood it, one of Weev's advocates at appeal), has said about the same process. Kerr has the (mis)fortune of not speaking through the prism of the mainstream media, but directly from his blog.
By way of bona fides, before I'm again asked how long I've worked for NSA: I think the FISC process is extremely bad and poses a long-term threat to civil liberties. But to read this article, you might come away with the idea that the solution would be to fix the FISC, when in reality what needs to happen is for Congress (which retains the authority to abolish FISC entirely) to establish some kind of bright-line rule about the limits of "foreign" surveillance (now that so much foreign traffic routes through the US) and to ensure that foreign surveillance is firewalled off from the rest of the government.