Posted by Brad @ 1:25 pm on July 8th 2013

A Nation of Laws It Cannot Be Trusted to Know

One of the most disturbing things from all the recent surveillance leaks – seems all my posts start that way these days – is the role that’s starting to come into focus of a shadow judiciary, controlled more or less by the executive branch, and which appears to have been fiated practical jurisdiction over setting the precedents about what government can and can’t do, and how, as it relates to privacy, national security, etc. When FISA, for instance, was originally conceived, I think most people’s conception of it was of otherwise appointed judges making case-by-case decisions, understandably off the grid, about surveillance in a fashion consistent with protecting national security secrecy and conducive to the special urgency of very specifically outlined types of surveillance cases.

In fact, what we are increasingly learning is that FISA’s function may in fact be less about case-by-case review and more defining parameters in which entire types of cases, and the needs of review/approval/appeal for each, are set (beyond FISA, there is an even less well defined and understood new function of the executive branch wherein they set an interpretation of law themselves and then go about operating under their interpretation, ala John Yoo). It is, in point of fact, not operating in the traditional “go wake those guys up to get a warrant” sense, but rather much more in the sense that outraged so many people in the Bush administration regarding torture and detention. Namely, as a sort of off-the-grid secret Supreme Court, informing our entire government on How Things Work according to…well, according to whatever they choose to accord to it. There is no specific architecture, and certainly there is no suggested course of action based on current law or constitutional precedent. Rather, it appears that those aspects of government which deal with national security and law enforcement have just kind of collectively decided to bypass our judicial system and create their own.

From the New York Times:

WASHINGTON ó In more than a dozen classified rulings, the nationís surveillance court has created a secret body of law giving the National Security Agency the power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the courtís classified decisions.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said. …

In one of the courtís most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the ďspecial needsĒ doctrine and carved out an exception to the Fourth Amendmentís requirement of a warrant for searches and seizures, the officials said.

By and large, the FISA court is appointed from existing federal judges by the Chief Justice of the Supreme Court (the judges mostly consist of “tough on crime” ex-prosecutors, it appears). And bear in mind as well that while the process is sort of understood the scope of authority is not, and beyond scope of authority their decisions too are secret – to the point that most congressmen briefed on such things are confused about what they know and don’t know. And that the execution of surveillance based on the scope of authority being decided in these ways we don’t understood is itself subject to gag orders so we can’t even really surmise based on what our government is actually doing what rights it thinks it has (the only reason we know anything is leaks that the government is working very hard to crack down on). And this is just the FISA court – we’ve already learned that the executive branch and military already basically decide for themselves when they even need to involve FISA.

Putting aside the actual impact of surveillance and the erosion of civil liberties – the case-by-case or story-by-story stuff about they’re doing X or Y – and pull the camera back for a second, and what we are basically learning is that the government no longer feels even perfunctorily constrained by laws that define what it can and cannot do, and to get around the inconvenience (to them) of having to constraint themselves according to definitions of their authority, have simply set up a system where they can just define it for themselves, with no debate, appeal, or even expectation of transparency. Again, it makes me think of John You and the Bush administration choosing to define FOR ITSELF what the Geneva Conventions mean or don’t mean. Most people were outraged by that. Well, that was a one-off. Where we are now is where that basic Modus Operandi has become standard operating procedure; torture aside, a huge swatch of government function is now ENTIRELY decided by John Yoos in the same fashion torture was. Don’t like the law? Have someone write a secret memo and leave it in your own file. Boom, that’s the law.

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