5 ms·

Supreme Court declines to hear challenge to secrecy of U.S. surveillance court

96 points by arkadiyt 5y ago

JumpCrisscross 5y ago
Do FISC rulings set precedent? Or are they more administrative in function?
- bb88 5y ago
  How would one know?
- woodruffw 5y ago
  I found a Yale Law Journal essay[1] that suggests that FISC ruling are at least partially precedential. But I'm not really sure how that works, given that case law systems like ours require all precedent to be public. [1]: https://www.yalelawjournal.org/comment/stare-decisis-and-secret-law https://www.yalelawjournal.org/comment/stare-decisis-and-sec...
hirundo 5y ago
"The government also presses the extraordinary claim that this Court is powerless to review the lower court decisions even if they are mistaken. On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts ... this case in-volves a governmental challenge to the power of this Court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is?" - Gorsuch dissent FISC was created by an act of congress. Now the executive branch is asserting that the court created by this act is not reviewable by the Supreme Court, established in the consitution. And except for strange bedfellows Gorsuch and Sotomayor, the court is letting them get away with it. If congress has such power regarding foreign surveillance, why wouldn't they have the same for other issues, like establishing an unreviewable Sedition Court or an Ecological Justice Court? Like FISC, these courts would effectively get their own interpretations of the bill of rights and everything else, with no need to even publish the resulting case law.
- raxxorrax 5y ago
  You wouldn't even need a court in that case, it would just be ridiculous posturing. They could put on robes, but it would just be another LARPG.
- lettergram 5y ago
  I think it’s because the court is outside of the justice branch of government. Put another way, the courts aren’t sentencing people. They aren’t enforcing the laws on the books really either. They are outside of either. Congress is really the party that needs to reign this in. They created this mechanism and the Supreme Court is basically confirming congresses right to do so. The reality is your representative(s) are to blame. BTW I’m not saying this is moral, justified, makes sense, w.e. I fully think congress should completely demolish the security state. I’d rather live in a world with risks than a world constructed to keep me a prisoner.
  - bb88 5y ago
    > The reality is your representative(s) are to blame. The representatives from nearly 50 years ago, that is. There are really just two reasons to keep things secret. One of them is to protect people from embarrassment.
    - themitigating 5y ago
      Is the other to protect government sources?
  - Talanes 5y ago
    Not only is it not outside the Judicial branch, the Chief Justice appoints the FISC judges.
  - Jansen312 5y ago
    Supreme court can review the act passed by Congress and modified it or nullify it which clearly unconstitutional. Essentially they are scared and just choose the cowardly way of ignoring it. Basically turning into NATO more and more each day.
throwawaylinux 5y ago
Was this the court that authorized wire taps of Trump's campaign on the basis the government had evidence they were conspiring with Russians to hack the election? Or am I getting my ultra right wing conspiracy theories mixed up in my head.
- ianhawes 5y ago
  Correct. The FBI based a wiretap application at FISC on the Trump Dossier. While there are plenty of right-wing crazy theories, this one had teeth as an example of an injustice.
  - throwawaylinux 5y ago
    Robert Mueller's report (https://www.justice.gov/archives/sco/file/1373816/download https://www.justice.gov/archives/sco/file/1373816/download) found no such evidence though. p.181 "The investigation did not establish that the contacts described in Volume I, Section IV, supra, amounted to an agreement to commit any substantive violation of federal criminal law—including foreign-influence and campaign-finance laws, both of which are discussed further below. The Office therefore did not charge any individual associated with the Trump Campaign with conspiracy to commit a federal offense arising from Russia contacts, either under a specific statute or under Section 371’s offenses clause." "The investigation did not establish any agreement among Campaign officials—or between such officials and Russia-linked individuals—to interfere with or obstruct a lawful function of a government agency during the campaign or transition period. And, as discussed in Volume I, Section V.A, supra, the investigation did not identify evidence that any Campaign official or associate knowingly and intentionally participated in the conspiracy to defraud that the Office charged, namely, the active-measures conspiracy described in Volume I, Section II, supra. Accordingly, the Office did not charge any Campaign associate or other U.S. person with conspiracy to defraud the United States based on the Russia-related contacts described in Section IV above." p. 183 "The investigation did not, however, yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of a foreign principal within the meaning of FARA or, in terms of Section 951, subject to the direction or control of the government of Russia, or any official thereof. In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government—or at its direction,control, or request—during the relevant time period." Shouldn't Mueller have at least included all the evidence that the FBI had taken to this court in the report?
themitigating 5y ago
Dang. Have you ever thought about putting the account age in the comment header?
- mdaniel 5y ago
  Heh, I guess that's supposed to read "DanG," But either way, I bet this would be easily achievable via a User Script, if you wished to scratch your own itch. I admit it would be easier if they included `data-accountCreated=` but AIUI the HN codebase isn't exactly under heavy development
ditpoo 5y ago
If brain level surveillance were a thing, is this the kind of court that would hear such cases and does other country have such things ?? FYI: Not a whistle blower

96 points by arkadiyt 5y ago

JumpCrisscross 5y ago

Do FISC rulings set precedent? Or are they more administrative in function?

bb88 5y ago
How would one know?
woodruffw 5y ago
I found a Yale Law Journal essay[1] that suggests that FISC ruling are at least partially precedential. But I'm not really sure how that works, given that case law systems like ours require all precedent to be public. [1]: https://www.yalelawjournal.org/comment/stare-decisis-and-secret-law https://www.yalelawjournal.org/comment/stare-decisis-and-sec...

hirundo 5y ago

"The government also presses the extraordinary claim that this Court is powerless to review the lower court decisions even if they are mistaken. On the government’s view, literally no court in this country has the power to decide whether citizens possess a First Amendment right of access to the work of our national security courts ... this case in-volves a governmental challenge to the power of this Court to review the work of Article III judges in a subordinate court. If these matters are not worthy of our time, what is?" - Gorsuch dissent FISC was created by an act of congress. Now the executive branch is asserting that the court created by this act is not reviewable by the Supreme Court, established in the consitution. And except for strange bedfellows Gorsuch and Sotomayor, the court is letting them get away with it. If congress has such power regarding foreign surveillance, why wouldn't they have the same for other issues, like establishing an unreviewable Sedition Court or an Ecological Justice Court? Like FISC, these courts would effectively get their own interpretations of the bill of rights and everything else, with no need to even publish the resulting case law.

raxxorrax 5y ago
You wouldn't even need a court in that case, it would just be ridiculous posturing. They could put on robes, but it would just be another LARPG.
lettergram 5y ago
I think it’s because the court is outside of the justice branch of government. Put another way, the courts aren’t sentencing people. They aren’t enforcing the laws on the books really either. They are outside of either. Congress is really the party that needs to reign this in. They created this mechanism and the Supreme Court is basically confirming congresses right to do so. The reality is your representative(s) are to blame. BTW I’m not saying this is moral, justified, makes sense, w.e. I fully think congress should completely demolish the security state. I’d rather live in a world with risks than a world constructed to keep me a prisoner.
- bb88 5y ago
  > The reality is your representative(s) are to blame. The representatives from nearly 50 years ago, that is. There are really just two reasons to keep things secret. One of them is to protect people from embarrassment.
  - themitigating 5y ago
    Is the other to protect government sources?
- Talanes 5y ago
  Not only is it not outside the Judicial branch, the Chief Justice appoints the FISC judges.
- Jansen312 5y ago
  Supreme court can review the act passed by Congress and modified it or nullify it which clearly unconstitutional. Essentially they are scared and just choose the cowardly way of ignoring it. Basically turning into NATO more and more each day.

throwawaylinux 5y ago

Was this the court that authorized wire taps of Trump's campaign on the basis the government had evidence they were conspiring with Russians to hack the election? Or am I getting my ultra right wing conspiracy theories mixed up in my head.

ianhawes 5y ago
Correct. The FBI based a wiretap application at FISC on the Trump Dossier. While there are plenty of right-wing crazy theories, this one had teeth as an example of an injustice.
- throwawaylinux 5y ago
  Robert Mueller's report (https://www.justice.gov/archives/sco/file/1373816/download https://www.justice.gov/archives/sco/file/1373816/download) found no such evidence though. p.181 "The investigation did not establish that the contacts described in Volume I, Section IV, supra, amounted to an agreement to commit any substantive violation of federal criminal law—including foreign-influence and campaign-finance laws, both of which are discussed further below. The Office therefore did not charge any individual associated with the Trump Campaign with conspiracy to commit a federal offense arising from Russia contacts, either under a specific statute or under Section 371’s offenses clause." "The investigation did not establish any agreement among Campaign officials—or between such officials and Russia-linked individuals—to interfere with or obstruct a lawful function of a government agency during the campaign or transition period. And, as discussed in Volume I, Section V.A, supra, the investigation did not identify evidence that any Campaign official or associate knowingly and intentionally participated in the conspiracy to defraud that the Office charged, namely, the active-measures conspiracy described in Volume I, Section II, supra. Accordingly, the Office did not charge any Campaign associate or other U.S. person with conspiracy to defraud the United States based on the Russia-related contacts described in Section IV above." p. 183 "The investigation did not, however, yield evidence sufficient to sustain any charge that any individual affiliated with the Trump Campaign acted as an agent of a foreign principal within the meaning of FARA or, in terms of Section 951, subject to the direction or control of the government of Russia, or any official thereof. In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government—or at its direction,control, or request—during the relevant time period." Shouldn't Mueller have at least included all the evidence that the FBI had taken to this court in the report?

themitigating 5y ago

Dang. Have you ever thought about putting the account age in the comment header?

mdaniel 5y ago
Heh, I guess that's supposed to read "DanG," But either way, I bet this would be easily achievable via a User Script, if you wished to scratch your own itch. I admit it would be easier if they included `data-accountCreated=` but AIUI the HN codebase isn't exactly under heavy development

ditpoo 5y ago

If brain level surveillance were a thing, is this the kind of court that would hear such cases and does other country have such things ?? FYI: Not a whistle blower