Know your BFEE: Judge Laurence Silberman, Go-To Guy of the Military Industrial Complex

[Octafish]

13. Amazing how they think no one will notice the apparatus.

Into the abyss Frank Church warned us about goes the United States of America:

Return to Nixonland

How the NSA slipped its leash under Bush and Obama.

BY LISA GRAVES
In These Times, OCTOBER 17, 2013

The documents leaked by Edward Snowden and published by the Guardian and other outlets confirm what privacy advocates have been saying for years: The government has secretly turned its most powerful weapons of foreign intelligence surveillance inward on millions of Americans.

How can an ordinary citizen cut through the brush—with the avalanche of complicated, classified materials released, the flurry of political finger-pointing, and the various denials and narrowly crafted dodges? Welcome to a guided tour of the National Security Agency (NSA) scandal. We’ll explore how we got here and what Nixon’s got to do with it.

SNIP...

Thus the protections in the FISA statute that at first appear to be shields against spying on Americans, appear upon closer inspection to operate as swords.

Where’s the Fourth Amendment?

Three rulings issued by FISA judges hand-picked by the Chief Justice have narrowly construed people’s Fourth Amendment rights when it comes to two core issues: the rules for content and data acquired by the NSA.

The Bush administration set the stage for its evasion of the Fourth Amendment in 2002, when it asked for a ruling from the FISA Court of Review (FISCR), which oversees FISC, in a case involving a Patriot Act provision changing the purpose of FISA surveil- lance. Judge Silberman (who testified against FISA in 1978) and two other judges heard government arguments— arguments originally concocted by Yoo. Silberman acted like an advocate from the bench, arguing that the Constitution does not require a warrant before the government can acquire the content of Americans’ communications.

The FISCR ruling opined that the constitutional test for searches in intel- ligence cases was “reasonableness,” not a warrant, and “the key to the reason- ableness of any search is the exterior threat.” In 2008, an unnamed “Internet Service Provider” (ISP) challenged “directives” issued after FISA Amendments Act as unconstitutional, but the FISCR ruled that the Constitution did not require a warrant based on probable cause to demand content of communications. In balancing whether a search order was “reasonable” under the Fourth Amendment, the court ruled that national security is of the “highest order of magnitude.”

In the most recent decision issued by the FISC, a lower court judge ruled that the NSA could acquire Americans’ call records en masse because Americans have “no reasonable expectation of privacy” in their phone or Internet data— a claim based on a Supreme Court decision from 1979 that most Americans have never heard of.

In that obscure case, Smith v. Maryland, a robbery suspect named Michael Lee Smith sued the state after police obtained his call records from his phone company without a search warrant. The Supreme Court, dominated by four new Nixon appointees, ruled that Smith had no constitutional expectation of privacy in information about himself conveyed to a third party, such as the phone company. (Justices Thurgood Marshall, Potter Stewart and William J. Brennan, Jr. dissented, noting that using a telephone does not carry with it an assumption that this information will be released to others, let alone the government.)

CONTINUED...

http://inthesetimes.com/article/15737/return_to_nixonland_nsa_spying

Gee. That nice NPR reporter never asks John Roberts about any of that.

PS: You are most welcome, madokie! Thank you for caring and understanding that this history isn't ancient, it's what the world we're living in is made of.