Secret government. America against democracy

[Catherina]

The Economist

Secret government
America against democracy

Jul 9th 2013, 13:52 by W.W. | HOUSTON

REVELATIONS in the wake of Edward Snowden's civil disobedience continue to roll in. The New York Times reports that the Federal Intelligence Surveillance Court, also known as the FISA court, "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..." How is the FISA court like a shadow Supreme Court? Its interpretation of the constitution is treated by the federal government as law. The Times reports:

"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."

Of course, there are important differences. 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. 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." 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.

...

Meanwhile, the Wall Street Journal adds some meat to the story by reporting that "The National Security Agency’s ability to gather phone data on millions of Americans hinges on the secret redefinition of the word 'relevant'".

In classified orders starting in the mid-2000s, the court accepted that "relevant" could be broadened to permit an entire database of records on millions of people, in contrast to a more conservative interpretation widely applied in criminal cases, in which only some of those records would likely be allowed, according to people familiar with the ruling.

"Relevant" has long been a broad standard, but the way the court is interpreting it, to mean, in effect, "everything," is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department's primary authority on federal criminal surveillance law.

(...)

Two senators on the Intelligence Committee, Ron Wyden (D., Ore.) and Mark Udall (D., Colo.), have argued repeatedly that there was a "secret interpretation" of the Patriot Act. The senators' offices tell the Journal that this new interpretation of the word "relevant" is what they meant.

...

Read the rest of this excellent article: http://www.economist.com/blogs/democracyinamerica/2013/07/secret-government?fsrc=scn/tw_ec/america_against_democracy

[cantbeserious]

1. Secret Courts, Secret Judges, Secret Rulings - This Will Not End Well

eom

[retired rooster]

17. What does EOM mean? Maybe end of message?

[cantbeserious]

20. Yes - You Are Right

eom

[Life Long Dem]

2. "the FISA court hears from only one side in the case—the government..."

What about grand juries?

GRAND JURY

A Grand Jury is comprised of 16-23 people. They listen to evidence presented by the D.A. and decide if there’s enough evidence against a defendant for him/her to face felony charges. It takes 12 grand jurors to vote an “indictment”.

A Grand Jury also has the power to return a case to the Criminal Court as a misdemeanor if it thinks there isn’t enough evidence for felony charges, but there is enough for misdemeanor charges. This would be called a “prosecutor’s information”.

The Grand Jury is an “arm” of the D.A.’s office, and the proceedings are secret in order to protect the witnesses.

It’s not hard for a D.A. to get an indictment because the Grand Jury usually only hears the D.A.’s evidence. There’s no defense lawyer to cross-examine the witnesses and they usually don’t hear from the defendant.

[NineNightsHanging]

6. Life Long Dem , you've COMPLETELY missed the point here

a grand jury doesn't create law. but that is , in effect what FISA is doing. Here's from the New York Times

"In more than a dozen classified rulings, the nation’s 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 court’s 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."

[Life Long Dem]

8. Wrong

They are talking about the judge issuing a warrant in secret court. It's one sided the same as a grand jury is one sided and secret.

[NineNightsHanging]

9. Are you able to read English?

If so, slowwwwly go over what I typed again.

They aren't just issuing individual "warrants" for individual people

" the nation’s surveillance court has ------> created a secret body of law <----------

[Life Long Dem]

10. They store millions of phone numbers

That's not the secret court issuing warrants, that's storing numbers under case law.

[NineNightsHanging]

12. "warrants" in quotes....I was following YOUR false analogy

to the grand jury.


Again. A grand jury does not create laws.


The FISA court is creating secret laws


They aren't analogous, parallel, comparable in any way.


What are you not comprehending here?


and they aren't just "storing phone numbers" -

http://news.cnet.com/8301-13578_3-57589495-38/nsa-spying-flap-extends-to-contents-of-u.s-phone-calls/

[Life Long Dem]

14. Never said the grand jury create laws

What secret laws is FISA court creating? Warrants?

[NineNightsHanging]

15. Yeah, so your bringing up grand juries was ridiculous in the first place

read what I pasted from the New York Times, ok?


No one can tell you exactly. THEY ARE SECRET DUDE!


Go track down what Senator Wyden said about what he cant say regarding this.


The FISA court so far has refused to even release SUMMARIES about this

[Life Long Dem]

16. So are grand jury proceedings

They are done in secret. Same as when a judge approves a warrant in FISA court. They are done in secret. I don't think pointing this out is ridiculous.

[TxGrandpa]

25. The proceedings of a grand jury is done in secret, BUT

....if an indictment is handed down, it is open if the case goes to trial, unless sealed for some reason. The proceedings of the FISA remains secret regardless. And the grand jury consists of average citizens not selected by the Chief Justice among other judges.

[Life Long Dem]

26. Proceedings of the FISA remains secret until you go to trial

[TxGrandpa]

28. If the FISA proceedings are revealed when a person goes to trial

....do you have information on when this has been in the news? To my knowledge FISA proceedings have not been released to the public in any case.

[Life Long Dem]

30. FISA proceedings "are" revealed when "a person" goes to trial.

But they are not made "public".

Because of the sensitive nature of its business, the court is a "secret court" – its hearings are closed to the public. While records of the proceedings are kept, they also are unavailable to the public, although copies of some records with classified information redacted have been made public.

http://en.wikipedia.org/wiki/United_States_Foreign_Intelligence_Surveillance_Court

[TxGrandpa]

37. Because of the sensitive nature of its business, the court is a "secret court"..therefore

...it can't be compared to a grand jury, even a trial to be judged by one's peers. If one engages an attorney, he/she has to be vetted by the government and granted a clearance and even then all the 'evidence' might not be released to present a valid defense.

[Life Long Dem]

39. Nobody is talking about a trial

We are talking about the indictment. The grand jury indictment has a subpoena, and FISC has a warrant (subpoena). They are both subpoena's and are held secretly.

[TxGrandpa]

59. Then why did you mention in Post #30 and #26...

...that 'FISA proceedings "are" revealed when "a person" goes to trial.'

[questionseverything]

29. it's the interpretation that changes the law

"Relevant" has long been a broad standard, but the way the court is interpreting it, to mean, in effect, "everything," is new, says Mark Eckenwiler, a senior counsel at Perkins Coie LLP who, until December, was the Justice Department's primary authority on federal criminal surveillance law.


so now does eckenwiler get scooped up and held without bail for leaking?

[GeorgeGist]

11. The indictments aren't secret.

[Life Long Dem]

13. The proceedings are.

[magellan]

32. By jury. Not by 10 republican judges

...who are defining the law on their own.

[magellan]

18. FISA court has no jurors

A grand jury impanels jurors from the same pool as trial juries.

FISA court interprets and makes law that impacts people regardless of guilt or innocence. A grand jury can result in an indictment only; the accused then has the benefit of a jury of their peers to determine their guilt or innocence.

Your comparison fails on several levels.

[Life Long Dem]

21. Justice Department officials

While Justice Department officials like to argue that getting a subpoena from FISC is akin to getting one from a grand jury, the only similarity between the two is the fact that neither is adversarial. Meaning, in both cases, the determination of whether or not a subpoena can be issued is based solely on arguments made by the government. Neither a grand jury nor FISC hears arguments against the government's point of view.

http://www.huffingtonpost.com/jennifer-hoelzer/what-you-should-know-abou_1_b_3399584.html

And exactly what I was saying about one sided. Both the grand jury and FISA court issue a subpoena heard "from only one side in the case". Like I said.

Jennifer Hoelzer, a former member of Wyden's press team.

[magellan]

31. Exactly. The ONLY similarity.

So there's no argument. The FISA court and a grand jury share only one similarity. They are vastly different in many ways.

[Life Long Dem]

34. Happens to be the one thing mentioned in the OP article

"And then there's the fact that "the FISA court hears from only one side in the case—the government..."

http://www.democraticunderground.com/10023222865

[magellan]

35. So you agree that's the only similarity. n/t

[Life Long Dem]

38. Well I think the main point should be that

the grand jury proceedings are also secret. Maybe they use judges for FISC and juries for indictments but they are "both" done secretly. And I'd say being one sided keeps it secret. It keeps out the defense or the other side. You could say you trust a jury over Republican judges and you may be right. But they "are" both done in secret. And isn't that the whole uproar? Being too secretive.

The Grand Jury is an “arm” of the D.A.’s office, and the proceedings are secret in order to protect the witnesses.

It’s not hard for a D.A. to get an indictment because the Grand Jury usually only hears the D.A.’s evidence. There’s no defense lawyer to cross-examine the witnesses and they usually don’t hear from the defendant.

http://www.democraticunderground.com/?com=view_post&forum=1002&pid=3222899

[magellan]

40. So now you're comparing a changing jury of peers

...deciding whether to charge one person with a crime under KNOWN law, to the same 11 judges, all appointed by the same man, defining a SECRET body of law and approving the surveillance of millions.

Sure. I see exactly what you mean. They're virtually the same thing.

[Life Long Dem]

41. Not really

Just that they are both done in secret with a one sided view.

[magellan]

42. And oranges are round like melons

But they aren't the same thing either.

[Life Long Dem]

44. Trust is everything

Joe the plumber you trust, but a judge you have no trust in.

And they are both one sided. Which means in a grand jury indictment you would also need to trust the prosecutor. That includes presenting the evidence they want.

[magellan]

46. You trust 10 Republicans acting in secret

You bet your sweet bippy I'd rather trust a jury of my peers.

[Life Long Dem]

47. How do you know what the prosecutor is presenting the jury?

You don't know, because it is one sided and secretive.

[magellan]

48. Millions of people aren't being indicted by a single grand jury in one fell swoop

The more interesting question is why do you trust Republicans with your privacy?

[Life Long Dem]

50. I never said I trust Republicans

FISA court is not the only court operating secretly. I think we both agree with that.

[magellan]

51. It's the only court secretly defining laws. n/t

[Life Long Dem]

53. I agree

That's because of the new amendments to the Patriot Act.

[magellan]

54. Well, perhaps we can agree on this too:

The Patriot Act needs to go.

eta "too" -- typing too fast.

[Life Long Dem]

55. We may have never needed it in the first place.

[magellan]

56. +1

I'm glad that we could agree on probably the most important thing.

[malaise]

3. I remember when we in the West attacked the Soviets and Chinese

for their Politburos. Those were petty structures compared with the US secret government.

[Life Long Dem]

4. "Relevant"

Rolling back the changes in the Patriot Act would take care of the added wording - "Relevant".

[Waiting For Everyman]

5. I'm guessing those responsible for this flunked English. nt

[Catherina]

7. English, logic, law and debate club. n/t

[4dsc]

19. Republicans love this shit.

Make no mistake about it folks republicans are loving this shit as they take away our liberties.

[kentuck]

22. Some scary shit.

"Of course, there are important differences. 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. 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." 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. "

[xchrom]

23. du rec.

[Civilization2]

24. anti-democratic closed-society sht,. freedom and democracy are dead in America

and some dim-witted twerps are defending the police-state like it was their mommy.

[truedelphi]

61. Who knows. Maybe here in Zombie land,

The police state is somebody's mommy. If political leaders can be viewed (at least metaphorically) as lizard people, those citizens that support totalitarianism might be the offspring of THE UNDEAD POLICE STATE VAMPIRES.

[Laelth]

27. k&r for exposure. n/t

-Laelth

[WillyT]

36. Did Somebody Say... Secret Government ???

DULink: http://www.democraticunderground.com/10023144317

[Octafish]

45. ''A parallel (SECRET) Supreme Court''

Gee. No one in Congress gets to talk about it, it's so secret.

If no one in Congress gets to talk about it, how can the Secret Court be discussed by the "People's Representatives"?

[usGovOwesUs3Trillion]

49. "carved out an exception to the Fourth Amendment"

That's some creepy totalitarian shit RIGHT THERE!

[ProSense]

52. Speaking of "secret government"

Which Other Countries Are ‘In Bed’ With The NSA?

By Hayes Brown

With three of their partners’ signal intelligence collection programs revealed, it’s only a matter of time before all eyes turn to two of the most seemingly innocuous members of the world stage: Canada and New Zealand.

<...>

Australia has recently found itself the most recent target of Snowden’s cache of documents. Just days ago, the land down under’s participation in the NSA’s intelligence gathering was splashed across headlines. In the pages of Brazil’s O Globo newspaper, Glenn Greenwald — one journalist who originally received the NSA documents from Snowden — catalogued the existence of a series of four NSA listening stations throughout Australia.

What the United States, United Kingdom, and Australia all have in common is joint membership in an organization known colloquially as “The Five Eyes.” In a 1943 agreement — not even officially acknowledged until 2005 and declassified in 2010 — the U.S. and Britain agreed to share signal intelligence between themselves and the Dominions of Canada, New Zealand, and Australia. Under the terms of the pact, formally known as the UKUSA Agreement, electronic information collected in the course of espionage can be passed freely among themselves, circumventing the normal controls against foreign sharing that intelligence usually possesses.

For those keeping track, that still leaves two of the Five Eyes’ participation remaining relatively concealed or at least not the focus of a leak. Thus far, the Communications Security Establishment Canada (CSEC) and New Zealand’s Government Communications Security Bureau have managed to avoid major scrutiny or revelations about the programs that they operate. Given the new interest in revealing legal cooperation in intelligence sharing, however, it’s not hard to guess that they might be next.

- more -

http://thinkprogress.org/security/2013/07/10/2276191/snowden-five-eyes/

[woo me with science]

57. Now that's a chilling article.

It is the systematic construction of a corporate police state. We are, in many ways, already at that point.

[Catherina]

58. It chills me too

As usGovOwesUs3Trillion pointed out: "carved out an exception to the Fourth Amendment"

[cantbeserious]

60. Thank You For Sharing And Your Efforts At Keeping Us Informed

eom