A dragnet warrant for “certain tangible things” by a judge who operates in secret and whose decisions are “Top Secret”
Oct. 16, 2013
Help, master, help! here’s a fish hangs in the net, like a poor man’s right in the law.
(Pericles — Shakespeare)
Is there a shadow government with a secret set of laws that have nothing to do with statutory law, much less the Constitution?
Revelations about the secretive FISA “court” (FISC) have been trickling out in the wake of the Snowden NSA leaks. What has emerged indicates that the Federal government believes it can secretly set precedents that amend the Constitution in a “court” that consists of a single judge acting in a process that allows no argument by opposing sides. The resulting opinion is then classified “Top Secret” and used as legal cover for government actions that are clearly in violation of the Constitution.
Phone Dragnet Reauthorized
This secret FISC issued a decision over the weekend extending “authority to collect telephony metadata in bulk”. We know about this secret decision only because DNI Clapper “decided to declassify and disclose” it publicly.
That same day, Congressman Jim Sensenbrenner, co-architect of the Patriot Act, (R) publicly came out against the NSA’s phone data dragnet calling it abusive, excessive and un-American and saying it was time “to put their metadata program out of business”.
We can always hope that Sensenbrenner has finally come to his senses about government abuse of power. But besides the Patriot Act, he was also author of the Real ID Act, supporter of Gitmo violations of human rights, author of the Digital Transition Content Security Act that attacked fair use of intellectual property and an advocate of extending the Espionage Act of 1917 to go after journalists. It’s much more likely that he’s just trying to distance himself from public outrage. The villagers are grabbing pitchforks and lighting torches over phone surveillance even if they don’t understand the full spectrum of the Frankenstein monster Sensenbrenner has worked so hard to build for over a decade.
A 21st Century Star Chamber
These authoritarians don’t just torture suspects at Gitmo and rendition sites. They torture logic and language to justify their criminal behavior. For example when DNI Clapper released a secret court opinion on Sep 17 he said, “The release of this opinion is consistent with the President’s call for more transparency on these valuable intelligence programs”.
Clapper and Obama brag about transparency when we continue to have a secret “court” issuing classified “top secret” decisions that impinge on Constitutionally recognized rights of the people. If they wanted to be transparent, they would only use a real court where arguments are heard and opinions are public, not classified.
The heavily redacted, “top secret” FISC opinion replaces Constitutional warrants from judges with “reasonable, articulable suspicion (RAS) as determined by a limited set of personnel”.
But don’t worry, there are safeguards and oversight. The FISC decision “requires the government to notify the Court [remember it's really just a single FISA judge] in writing immediately concerning any instance of non-compliance.” Not surprisingly, the opinion continues adds, “According to the government, in the prior authorization period there have been no compliance incidents.” Move along, there’s nothing to worry about. Do we really believe that the government is going to blow the whistle on itself when it zealously persecutes and prosecutes whistleblowers?
The Obama administration continues to extend the surveillance state but this is not something that started with Obama. Just like the infamous Star Chamber, the FISA “court” was established in 1978 as a reform measure. In the aftermath of the Church Committee hearings it was designed to prevent the violations of the Fourth Amendment under President Nixon. But it had a fundamental flaw. It did an end run around the Constitution in the name of expediency allowing surveillance without court order and allowing it to act in secrecy.
The original Star Chamber was created as a tool against those who were too big to jail. But there are terrible consequences whenever we violate the principles of jury trials, open to the public. The Star Chamber, meeting secretly with no indictments and no witnesses, didn’t restrain the powerful but became their most feared tool of oppression. In the same way, the FISA “court” with its secret process and secret decisions has not protected the Fourth Amendment but has become a tool of oppression.
Here’s what Chief Supreme Court Justice Roberts said about FISC in July, after the Snowden revelations brought it to public attention:
“When I first learned about the FISA court, I was surprised,” Roberts told the committee. “It’s not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it’s subject to the glare of publicity. And the judges explain their decision to the public and they can examine them.”
He was surprised that it existed. Why? Because there is nothing in the Constitution about a secret “court” of one judge, no jury and no argument. But Roberts played along and appointed judges anyway. And most of the public outrage from Congress and the crony media has been that it’s mainly Republicans getting appointed to FISC and not enough Democrats. That’s the sorry state of our republic.
Our Rights in the Fickle Hands of Political Judges
The FISC decision that Clapper released says that to authorize a dragnet search of phone data “the Court [a single judge] considered whether the Fourth Amendment to the US Constitution imposed any impediment to the government’s proposed collection”. These statists pretended the Fourth Amendment’s simple and clear prohibitions weren’t applicable and they looked to guidance from Supreme Court (SCOTUS) decisions.
The FISC decision cites three SCOTUS cases. The first, Olmstead v US (1928) was written in the throes of Alcohol Prohibition and said that wiretapping private telephone conversations wasn’t a violation of the 4th and 5th Amendments.
That decision was overturned in the period of temporary sanity between the Prohibition Wars by Katz v US (1967) which held that unreasonable search & seizure referred to all areas where a person has a “reasonable expectation of privacy”.
But under the political pressures of Prohibition II, the War on Drugs, the SCOTUS decision on Smith v Maryland (1979) produced a new twist on the idea of an “expectation of privacy”. The trial focused on phone company pen registers. Pen registers are devices that record all numbers called from a particular phone. The SCOTUS decision reasoned that there was no “expectation of privacy” since the caller voluntarily provided the numbers to the phone company when they dialed the phone numbers.
Business Records Not Private?
That SCOTUS decision is the FISC excuse for ignoring the Fourth Amendment in its dragnet collection of phone data. It is also the rationale for the government collecting data from internet companies as part of the PRISM program. And it is the argument that government at every level is using to track you constantly via your cellphone.
In mid-July the NJ State Supreme Court ruled that police required a warrant to track someone by cellphone. But two weeks later, the federal Court of Appeals for the Fifth Circuit, ruled that there was no expectation of privacy because your cellphone location is “a business record” that they can get from a third party. It looks like this will also go to the Supreme Court.
The “logic” of Smith v Maryland — that any records that any business has about you are not private and that the government needs no warrant — is the legal evasion at the heart of the surveillance state. THAT is the issue with meta-data and that is why it is a fight the people must not lose to the authoritarians.
The remedies against an American Star Chamber were the 4th, 5th Amendments and open trial by jury. The remedy against the 21st Century Star Chamber — the secretive FISA Court — is their reinstatement.
David Knight is a host for the InfoWars Nightly News