15 ms·

Secret government: America against democracy

374 points by primelens 13y ago

deleted 13y ago
[deleted]
tptacek 13y ago
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.
- mtgx 13y ago
  > 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.
- hkhanna 13y ago
  > 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?
- md224 13y ago
  > 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: https://twitter.com/willwilkinson/status/354725080288346112 https://twitter.com/willwilkinson/status/354725080288346112
snowwrestler 13y ago
> How is the FISA court like a shadow Supreme Court? Its interpretation of the constitution is treated by the federal government as law. All federal court decisions are treated by the federal government as law. The Supreme Court just happens to have the last word on appeal. Generally speaking in the U.S., "the law" is not what the text of a bill says, it is what the courts say the text means. > And then there's the fact that "the FISA court hears from only one side in the case—the government—and its findings are almost never made public." Grand jury proceedings are also secret and hear only from the government. That is ok because a grand jury is not determining guilt, it is just deciding whether a prosecution can proceed. Likewise, FISA is not determining guilt, it is just deciding whether an investigation can employ certain tactics and technologies.
- aetherson 13y ago
  Grand juries do not issue opinions on things like "the meaning of the 4th Amendment." It seems appropriate to apply just a tiny bit more scrutiny to the FISA court than grand juries.
  - tptacek 13y ago
    FISC also doesn't issue opinions on "the meaning of the 4th Amendment". The most important way the courts have shaped 4th Amendment jurisprudence in the last century is through application of the exclusionary rule in criminal cases. FISC doesn't hear criminal cases, and if evidence from NSA/FISA was brought up in a domestic criminal case, it would be evaluated by a normal domestic court judge and, very likely, excluded.
    - aetherson 13y ago
      But in fact it does issue opinions on the meaning of the 4th Amendment. It applies judgment on whether given searches are legal and constitutional, which the government apparently regards as being normal judicial precedent. The fact that those warrants then never lead to ordinary criminal cases is precisely the point.
    - 13y ago
lukifer 13y ago
This abuse of "special needs" is horrifically egregious, but I find myself wondering exactly how one would go about codifying "common sense" exceptions to the Constitution, like the infamous example of shouting fire in a crowded theater. If one allows for genuine edge-case exceptions, whether explicitly in law or implicitly by interpretation, how can we prevent the gap from widening into eroding the law completely? For instance, it's not a far leap from shouting fire, to so-called hate speech, and from there to silencing dissidents. (Note also the use of the word "reasonable" in the 4th; while it has a very specific legal meaning, clearly the courts are interpreting it very differently from civil liberties advocates.)
- visarga 13y ago
  FISA redefined the word "reasonable". Bill Clinton redefined the word "is". It would seem anything is fair game.
DanielBMarkham 13y ago
Warning: a bit of meta ahead. I upvoted this as I was reading the first paragraph, even though I had a sneaking suspicion it was just a recap of secrecy state news. I did this probably because I'm a sucker for things that I feel strongly about emotionally. But as I continued reading, I'm thinking Good grief! Here's some other person rightly upset about where we are but clueless about how we got here or what to do about it. What have I gotten into? Then I come to this: "All this somehow got me thinking of the doctrine of "democracy promotion", which was developed under George W. Bush and maintained more or less by Barack Obama" What? America has publicly and openly supported democracy -- sometimes at the pointy-end of a gun -- for decades. Then several other errors stood out. I'm sure that W.W., whoever he might be, means well, but we've kind of reached the point here where there are a hell of a lot of people getting the general message that things are fucked up and carrying a ton of baggage with them when trying to figure out how. So break out the pet theories: evil bankers, corporations controlling the government, one party or the other out to set up a kingship, GW Bush policies continues to destroy the country -- whatever emotional baggage they're dragging around, they're bringing it to this discussion. This is a really bad thing because it trivializes the entire issue. Ezra Klein the other day was talking about FISC judges mostly being Republican, as if the problem here were not that we have the FISA court in the first place, but that the wrong people are on it! (I find a bit of self-referential critques to all of this; it seems the charges being leveled are those the authors would be most guilty of themselves given the chance, but I digress) This guy wants to go on a riff about how the select few -- our betters -- are making these incredible decisions about the disaster we've created. Let's be clear about this: the government keeping detailed records of all the communication and movement of each citizen is not okay, even if 90% of the country voted for it. It's not okay because a democracy cannot survive in a perpetual state of war, and once we are at war with the population itself, it's never going to end well. Police counter-intelligence is one thing. There are probably 10K people in the US that need secret files and should be watched because they are dangerous. Fishing expeditions against huge databases of facts from years ago regarding any random citizen are out of the question. It's not that it's bad or makes me angry. It's that it doesn't work. The system is unsustainable over the long-term. So kudos to the author for being outraged and making a point about the system broken. I encourage whoever it is to stick around and learn to articulate the good parts of the system as well as the shitty parts. Learn the difference between what a lot of the rhetoric folks read, like about the judges being unaccountable, and what the reality actually is. Otherwise it's just more mindless ranting. (About something many of us are legitimately upset about) Because it confuses the issue as much as illuminates it, this is not helpful. I'm going to start being much more careful with upvotes for security state articles on HN. Love 'em, but they need to bring more quality to the table to be here.
l33tbro 13y ago
What confounds me is how Obama continues to drink his own kool-aid. Did anyone catch him on Charlie Rose a little while back? (30 minutes in - https://www.youtube.com/watch?v=IlThTTJgKYo https://www.youtube.com/watch?v=IlThTTJgKYo). The author of the article is right: it is difficult to know whether to laugh or cry.
malandrew 13y ago
Question: Do all the justices in SCOTUS have access to each and every ruling made by FISC? If so, can a SCOTUS justice unilaterally promote a FISC ruling to be heard by SCOTUS? In other words, can SCOTUS provide a secondary source of oversight over FISC in addition to the oversight from the intelligence committee in Congress?
- kposehn 13y ago
  Excellent question. I'd definitely like to know the answer to this. If it isn't classified, that is.
- dragonwriter 13y ago
  > Do all the justices in SCOTUS have access to each and every ruling made by FISC? No. > If so, can a SCOTUS justice unilaterally promote a FISC ruling to be heard by SCOTUS? No, even if they have knowledge of a lower court decision (and there is an intermediate court between the FISC and SCOTUS), neither a single Justice nor the Supreme Court itself can "pull" a case that hasn't been brought before them by a party.
  - DannyBee 13y ago
    You are correct in the first instance, however, the law does direct FISC to transmit records to SCOTUS upon writ of certiorari. So at least in the case that someone wants to actually appeal one, it's not kept from SCOTUS See 50 USC 1803(b) As for the second part, again, you are technically correct. They cannot promote such rulings. However, they can stay them, per 50 USC 1803(f). In fact, individual justices can stay them.
    - dragonwriter 13y ago
      > You are correct in the first instance, however, the law does direct FISC to transmit records to SCOTUS upon writ of certiorari. Unless I'm missing something, it directs FISC to transmit records under seal to the Foreign Intelligence Surveillance Court of Review (FISCR) for appeals, and FISCR to do so to SCOTUS. > So at least in the case that someone wants to actually appeal one, it's not kept from SCOTUS See 50 USC 1803(b) 1803(a), for appeal from FISC to FISCR, and 1803(b) for appeal from FISCR to SCOTUS, only provides for appeal by the government against denial of a warrant.
o0-0o 13y ago
America is not against democracy. It is about restraining itself from making that whole area over there a glass parking lot. It may come to that, anyway.
api 13y ago
The U.S. has a very long history of foreign policy hypocrisy, especially since WWII. One of the reasons the British finally divested themselves of their empire is that it was bankrupting them and destroying their civil society. The empire eventually comes home. Everything we've done overseas will eventually be applied to us, and the costs will be ours to bear. Hopefully we'll be as wise as the British and divest ourselves of empire before it destroys us, because it seems like civilizations that do not gracefully exit empire collapse.
- jivatmanx 13y ago
  Indeed, the Roman Republic turned into an Empire as it gained more territory, and having a representative system with most people being non-citizens became an untenable contradiction.
- digitalengineer 13y ago
  It would seem the British were 'assisted' with parting with their empire by the US: "...an ambitious geopolitical agenda hatched within President Franklin D. Roosevelt's Treasury and aimed at eliminating Britain as an economic and political rival". http://www.amazon.com/The-Battle-Bretton-Woods-University/dp/0691149097 http://www.amazon.com/The-Battle-Bretton-Woods-University/dp...
  - api 13y ago
    Maybe we can dump our empire on China. Bonus: they'll think it's a good thing.
    - gadders 13y ago
      They are already building their own in Africa.
      - zhemao 13y ago
        Yeah, minus the enormous military expenditures and political meddling. They're going about building empire the smart way: a way in which no one even realizes they are building one and they can pull out at any time without far-reaching political repercussions.
jussij 13y ago
> "said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system." What bothers me is why a civilised country would even consider that type of system constitutes a court of law. Dictators and tyrants around the world use pretty much the same model and no one in their right mind would call those legal systems.
tracker1 13y ago
Regarding "none of the fisa court judges are vetted by congress" ... weren't they vetted when they were appointed as federal judges (since all fisa judges are also federal court judges)? Not that I agree with there even being a FISA court... just curious on that point.
adventured 13y ago
"I'd very much like to know what led Mr Obama to change his mind" He didn't change his mind. He lied to get elected. His team knew exactly what message to hit, riding the wave of anti-Republican / anti-George W. Bush sentiment, to win the election. Obama is a politician above all else, and a scoundrel; but then I repeat myself [hat tip Mr Twain]. Normal people get confused by how a politician's brain works. Typically a person holds a set of beliefs, and attempts to follow those whenever they reasonably can. They have a code of morality, knowingly chosen or absorbed by default, and they try to be good, most of the time. Politicians do not function that way professionally. Work life Obama is not private life Obama. A voter sees what they think is a normal person when they vote; there's nothing normal about the business life of a politician. The really talented ones hold every belief simultaneously, and switch when it's required. With the only restriction being the party ideology; and the only variable within that being the strictness of adherence (it's the same game of ideological flexibility, just played within the party's limits). In this day and age, to aspire to the Presidency, you're either a psychotic power luster capable of any lies and misdeeds necessary to win the office, or you're an ideologue willing to fall on the sword. The former usually wins.
- diminoten 13y ago
  That's nice fiction, but it's entirely unfalsifiable, making it a completely ineffective as a theory.
  - wissler 13y ago
    The theory that it should be falsifiable in order to be valid, is not falsifiable.
    - logical42 13y ago
      Perhaps it's not a theory. Perhaps it's an axiom.
      - maggit 13y ago
        I'd say it's a paradigm. For whatever that's worth ;)
amerika 13y ago
I don't think this is America against democracy. Democracy is mob rule. I think this surveillance was originally a good idea, since all the data's out there and the bad guys are using it. It was abused when it was turned from "listen to all traffic and see if you can find terrorists" to "use this whenever we suspect someone of anything."
ckozlowski 13y ago
(There's a fantastic discussion and analysis in this comments thread, and I'm learning a lot from it. Thanks to all involved. =)
bayesianhorse 13y ago
I don't believe the U.S. system can change these undemocratic features at a favorable cost.
Mordor 13y ago
It's worrying that words are being redefined to the extent that Obama doesn't make any sense anymore.
amerika 13y ago
It's not popular to say this but: democracy is a failure. We have constant political turmoil, constant corruption, and constant interruption by "well-intentioned" but insane government programs. The world is constantly unstable. Let's get away from the popularity model of government and move to the competence model.

374 points by primelens 13y ago

deleted 13y ago

[deleted]

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.

mtgx 13y ago
> 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.
hkhanna 13y ago
> 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?
md224 13y ago
> 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: https://twitter.com/willwilkinson/status/354725080288346112 https://twitter.com/willwilkinson/status/354725080288346112

snowwrestler 13y ago

> How is the FISA court like a shadow Supreme Court? Its interpretation of the constitution is treated by the federal government as law. All federal court decisions are treated by the federal government as law. The Supreme Court just happens to have the last word on appeal. Generally speaking in the U.S., "the law" is not what the text of a bill says, it is what the courts say the text means. > And then there's the fact that "the FISA court hears from only one side in the case—the government—and its findings are almost never made public." Grand jury proceedings are also secret and hear only from the government. That is ok because a grand jury is not determining guilt, it is just deciding whether a prosecution can proceed. Likewise, FISA is not determining guilt, it is just deciding whether an investigation can employ certain tactics and technologies.

aetherson 13y ago
Grand juries do not issue opinions on things like "the meaning of the 4th Amendment." It seems appropriate to apply just a tiny bit more scrutiny to the FISA court than grand juries.
- tptacek 13y ago
  FISC also doesn't issue opinions on "the meaning of the 4th Amendment". The most important way the courts have shaped 4th Amendment jurisprudence in the last century is through application of the exclusionary rule in criminal cases. FISC doesn't hear criminal cases, and if evidence from NSA/FISA was brought up in a domestic criminal case, it would be evaluated by a normal domestic court judge and, very likely, excluded.
  - aetherson 13y ago
    But in fact it does issue opinions on the meaning of the 4th Amendment. It applies judgment on whether given searches are legal and constitutional, which the government apparently regards as being normal judicial precedent. The fact that those warrants then never lead to ordinary criminal cases is precisely the point.
  - 13y ago

lukifer 13y ago

This abuse of "special needs" is horrifically egregious, but I find myself wondering exactly how one would go about codifying "common sense" exceptions to the Constitution, like the infamous example of shouting fire in a crowded theater. If one allows for genuine edge-case exceptions, whether explicitly in law or implicitly by interpretation, how can we prevent the gap from widening into eroding the law completely? For instance, it's not a far leap from shouting fire, to so-called hate speech, and from there to silencing dissidents. (Note also the use of the word "reasonable" in the 4th; while it has a very specific legal meaning, clearly the courts are interpreting it very differently from civil liberties advocates.)

visarga 13y ago
FISA redefined the word "reasonable". Bill Clinton redefined the word "is". It would seem anything is fair game.

DanielBMarkham 13y ago

Warning: a bit of meta ahead. I upvoted this as I was reading the first paragraph, even though I had a sneaking suspicion it was just a recap of secrecy state news. I did this probably because I'm a sucker for things that I feel strongly about emotionally. But as I continued reading, I'm thinking Good grief! Here's some other person rightly upset about where we are but clueless about how we got here or what to do about it. What have I gotten into? Then I come to this: "All this somehow got me thinking of the doctrine of "democracy promotion", which was developed under George W. Bush and maintained more or less by Barack Obama" What? America has publicly and openly supported democracy -- sometimes at the pointy-end of a gun -- for decades. Then several other errors stood out. I'm sure that W.W., whoever he might be, means well, but we've kind of reached the point here where there are a hell of a lot of people getting the general message that things are fucked up and carrying a ton of baggage with them when trying to figure out how. So break out the pet theories: evil bankers, corporations controlling the government, one party or the other out to set up a kingship, GW Bush policies continues to destroy the country -- whatever emotional baggage they're dragging around, they're bringing it to this discussion. This is a really bad thing because it trivializes the entire issue. Ezra Klein the other day was talking about FISC judges mostly being Republican, as if the problem here were not that we have the FISA court in the first place, but that the wrong people are on it! (I find a bit of self-referential critques to all of this; it seems the charges being leveled are those the authors would be most guilty of themselves given the chance, but I digress) This guy wants to go on a riff about how the select few -- our betters -- are making these incredible decisions about the disaster we've created. Let's be clear about this: the government keeping detailed records of all the communication and movement of each citizen is not okay, even if 90% of the country voted for it. It's not okay because a democracy cannot survive in a perpetual state of war, and once we are at war with the population itself, it's never going to end well. Police counter-intelligence is one thing. There are probably 10K people in the US that need secret files and should be watched because they are dangerous. Fishing expeditions against huge databases of facts from years ago regarding any random citizen are out of the question. It's not that it's bad or makes me angry. It's that it doesn't work. The system is unsustainable over the long-term. So kudos to the author for being outraged and making a point about the system broken. I encourage whoever it is to stick around and learn to articulate the good parts of the system as well as the shitty parts. Learn the difference between what a lot of the rhetoric folks read, like about the judges being unaccountable, and what the reality actually is. Otherwise it's just more mindless ranting. (About something many of us are legitimately upset about) Because it confuses the issue as much as illuminates it, this is not helpful. I'm going to start being much more careful with upvotes for security state articles on HN. Love 'em, but they need to bring more quality to the table to be here.

l33tbro 13y ago

What confounds me is how Obama continues to drink his own kool-aid. Did anyone catch him on Charlie Rose a little while back? (30 minutes in - https://www.youtube.com/watch?v=IlThTTJgKYo https://www.youtube.com/watch?v=IlThTTJgKYo). The author of the article is right: it is difficult to know whether to laugh or cry.

malandrew 13y ago

Question: Do all the justices in SCOTUS have access to each and every ruling made by FISC? If so, can a SCOTUS justice unilaterally promote a FISC ruling to be heard by SCOTUS? In other words, can SCOTUS provide a secondary source of oversight over FISC in addition to the oversight from the intelligence committee in Congress?

kposehn 13y ago
Excellent question. I'd definitely like to know the answer to this. If it isn't classified, that is.
dragonwriter 13y ago
> Do all the justices in SCOTUS have access to each and every ruling made by FISC? No. > If so, can a SCOTUS justice unilaterally promote a FISC ruling to be heard by SCOTUS? No, even if they have knowledge of a lower court decision (and there is an intermediate court between the FISC and SCOTUS), neither a single Justice nor the Supreme Court itself can "pull" a case that hasn't been brought before them by a party.
- DannyBee 13y ago
  You are correct in the first instance, however, the law does direct FISC to transmit records to SCOTUS upon writ of certiorari. So at least in the case that someone wants to actually appeal one, it's not kept from SCOTUS See 50 USC 1803(b) As for the second part, again, you are technically correct. They cannot promote such rulings. However, they can stay them, per 50 USC 1803(f). In fact, individual justices can stay them.
  - dragonwriter 13y ago
    > You are correct in the first instance, however, the law does direct FISC to transmit records to SCOTUS upon writ of certiorari. Unless I'm missing something, it directs FISC to transmit records under seal to the Foreign Intelligence Surveillance Court of Review (FISCR) for appeals, and FISCR to do so to SCOTUS. > So at least in the case that someone wants to actually appeal one, it's not kept from SCOTUS See 50 USC 1803(b) 1803(a), for appeal from FISC to FISCR, and 1803(b) for appeal from FISCR to SCOTUS, only provides for appeal by the government against denial of a warrant.

o0-0o 13y ago

America is not against democracy. It is about restraining itself from making that whole area over there a glass parking lot. It may come to that, anyway.

api 13y ago

The U.S. has a very long history of foreign policy hypocrisy, especially since WWII. One of the reasons the British finally divested themselves of their empire is that it was bankrupting them and destroying their civil society. The empire eventually comes home. Everything we've done overseas will eventually be applied to us, and the costs will be ours to bear. Hopefully we'll be as wise as the British and divest ourselves of empire before it destroys us, because it seems like civilizations that do not gracefully exit empire collapse.

jivatmanx 13y ago
Indeed, the Roman Republic turned into an Empire as it gained more territory, and having a representative system with most people being non-citizens became an untenable contradiction.
digitalengineer 13y ago
It would seem the British were 'assisted' with parting with their empire by the US: "...an ambitious geopolitical agenda hatched within President Franklin D. Roosevelt's Treasury and aimed at eliminating Britain as an economic and political rival". http://www.amazon.com/The-Battle-Bretton-Woods-University/dp/0691149097 http://www.amazon.com/The-Battle-Bretton-Woods-University/dp...
- api 13y ago
  Maybe we can dump our empire on China. Bonus: they'll think it's a good thing.
  - gadders 13y ago
    They are already building their own in Africa.
    - zhemao 13y ago
      Yeah, minus the enormous military expenditures and political meddling. They're going about building empire the smart way: a way in which no one even realizes they are building one and they can pull out at any time without far-reaching political repercussions.

jussij 13y ago

> "said he was troubled by the idea that the court is creating a significant body of law without hearing from anyone outside the government, forgoing the adversarial system that is a staple of the American justice system." What bothers me is why a civilised country would even consider that type of system constitutes a court of law. Dictators and tyrants around the world use pretty much the same model and no one in their right mind would call those legal systems.

tracker1 13y ago

Regarding "none of the fisa court judges are vetted by congress" ... weren't they vetted when they were appointed as federal judges (since all fisa judges are also federal court judges)? Not that I agree with there even being a FISA court... just curious on that point.

adventured 13y ago

"I'd very much like to know what led Mr Obama to change his mind" He didn't change his mind. He lied to get elected. His team knew exactly what message to hit, riding the wave of anti-Republican / anti-George W. Bush sentiment, to win the election. Obama is a politician above all else, and a scoundrel; but then I repeat myself [hat tip Mr Twain]. Normal people get confused by how a politician's brain works. Typically a person holds a set of beliefs, and attempts to follow those whenever they reasonably can. They have a code of morality, knowingly chosen or absorbed by default, and they try to be good, most of the time. Politicians do not function that way professionally. Work life Obama is not private life Obama. A voter sees what they think is a normal person when they vote; there's nothing normal about the business life of a politician. The really talented ones hold every belief simultaneously, and switch when it's required. With the only restriction being the party ideology; and the only variable within that being the strictness of adherence (it's the same game of ideological flexibility, just played within the party's limits). In this day and age, to aspire to the Presidency, you're either a psychotic power luster capable of any lies and misdeeds necessary to win the office, or you're an ideologue willing to fall on the sword. The former usually wins.

diminoten 13y ago
That's nice fiction, but it's entirely unfalsifiable, making it a completely ineffective as a theory.
- wissler 13y ago
  The theory that it should be falsifiable in order to be valid, is not falsifiable.
  - logical42 13y ago
    Perhaps it's not a theory. Perhaps it's an axiom.
    - maggit 13y ago
      I'd say it's a paradigm. For whatever that's worth ;)

amerika 13y ago

I don't think this is America against democracy. Democracy is mob rule. I think this surveillance was originally a good idea, since all the data's out there and the bad guys are using it. It was abused when it was turned from "listen to all traffic and see if you can find terrorists" to "use this whenever we suspect someone of anything."

ckozlowski 13y ago

(There's a fantastic discussion and analysis in this comments thread, and I'm learning a lot from it. Thanks to all involved. =)

bayesianhorse 13y ago

I don't believe the U.S. system can change these undemocratic features at a favorable cost.

Mordor 13y ago

It's worrying that words are being redefined to the extent that Obama doesn't make any sense anymore.

amerika 13y ago

It's not popular to say this but: democracy is a failure. We have constant political turmoil, constant corruption, and constant interruption by "well-intentioned" but insane government programs. The world is constantly unstable. Let's get away from the popularity model of government and move to the competence model.