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The Courts Privacy Politics

FISA Judges Oppose Intelligence Reform Proposals Aimed At Court 187

Posted by Soulskill
from the you-can-trust-us dept.
cold fjord writes "The LA Times reports, 'Judges on the ... surveillance court have strongly rejected any proposed changes to their review process ... In a blunt letter to the House and Senate intelligence and judiciary committees, U.S. District Judge John D. Bates made it clear that the 11 judges on the Foreign Intelligence Surveillance Court are united in opposition to key recommendations by a presidential task force last month ... their skepticism adds to a list of hurdles for those advocating significant reforms following former National Security Agency contractor Edward Snowden's massive disclosures of domestic and foreign surveillance programs. ... Obama and some intelligence officials have publicly signaled support for creating an adversarial legal process in the court ... and aides have suggested the president will create an advocate's position or call for legislation to do so ... But Bates disagreed sharply, arguing that "the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation." Adding an advocate to "run-of-the-mill FISA matters would substantially hamper the work of the courts without providing any countervailing benefit in terms of privacy protection," he added.' — The Hill adds that Bates, "... recommended an advocate chosen by the court, rather than an independent authority, for only a limited number of cases. " — More at Computerworld and NPR."
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FISA Judges Oppose Intelligence Reform Proposals Aimed At Court

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  • by Jeremiah Cornelius (137) on Wednesday January 15, 2014 @05:12PM (#45969477) Homepage Journal

    You'll be crushed, either way. The ratchet turns only one way.

  • It's rigged (Score:5, Insightful)

    by Astro Dr Dave (787433) on Wednesday January 15, 2014 @05:14PM (#45969493)
    If they're against an adversarial process, that suggests that the FISA court is not a neutral party. While I agree that it is inadequate, a third-party advocate for civil liberties would be better than the nothing that we have at the moment.

    I'm suspicious of an advocate chosen by the court. Fox guarding the henhouse?

    Then again, I'm also suspicious of secret court proceedings.
  • Re:It's rigged (Score:5, Insightful)

    by NewWorldDan (899800) <dan@gen-tracker.com> on Wednesday January 15, 2014 @05:22PM (#45969559) Homepage Journal

    They're judges. It's not their job to make policy. If they're all united against reform, then they all need to be removed from the court. Then again, the FISA court should be disbanded anyway. I can hardly think of anything more un-American than secret courts.

  • Zero sympathy (Score:5, Insightful)

    by epyT-R (613989) on Wednesday January 15, 2014 @05:25PM (#45969591)

    So an advocate would not benefit the process? Then the process is broken. In the interests of protecting innocents from government overreach, dissolve the FISA court.

    I'd like my rights, freedoms, and liberties back please. I don't need or want you or your 'protection.'

  • Hold on there... (Score:5, Insightful)

    by Charliemopps (1157495) on Wednesday January 15, 2014 @05:31PM (#45969649)

    Everyones screaming at the Judges, but read what they're saying:
    "the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation."

    REALLY read that. I read it as saying "You're trying to send an advocate to make this appear like it's an adversarial process. But it's not. This will still be a rubber stamping process until you send in a REAL advocate."

    i.e. If there are going to be reforms, then they need to be real. Reforms like this (that achieve nothing but make the people think somethings been done) will only increase their workload. With no added benefit to the target of the NSA.

  • Re:It's rigged (Score:5, Insightful)

    by Obfuscant (592200) on Wednesday January 15, 2014 @05:32PM (#45969653)

    If they're against an adversarial process, that suggests that the FISA court is not a neutral party.

    You didn't read the summary. They aren't against "an adversarial process", they're against a process that won't actually create the adversarial process that the proponents intend it to.

    As it says in the summary, the judges believe that adding an "advocate" won't create an adversarial process and won't add any significant amount of information to be useful in the judicial process, because the person appointed to that role won't be able to do any investigations or even contact the suspect.

    Here's a car analogy: you take your car into the shop because the brakes aren't working well. The mechanic says "your brakes aren't working well, I need to change your air filter and add a speed governor to your car so you can't go faster than 45 MPH". You say "no". What, are you against having working brakes? Of course not, you're against paying for "fixes" that don't fix the brakes.

  • Re:It's rigged (Score:3, Insightful)

    by CanHasDIY (1672858) on Wednesday January 15, 2014 @05:37PM (#45969707) Homepage Journal

    If they're against an adversarial process, that suggests that the FISA court is not a neutral party. While I agree that it is inadequate, a third-party advocate for civil liberties would be better than the nothing that we have at the moment.

    I'm suspicious of an advocate chosen by the court. Fox guarding the henhouse?

    Then again, I'm also suspicious of secret court proceedings.

    I think of it this way:

    The Constitution, which cannot be superseded by anything other than a Constitutional Amendment, states in her Fifth Amendment [emphasis added]:

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

    As well as in the Sixth Amendment:

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

    Therefore, as no Constitutional Amendment has thus far been passed that would negate the Fifth and Sixth, then the FISA court and all its decisions are de facto unconstitutional.

  • by MobyDisk (75490) on Wednesday January 15, 2014 @05:48PM (#45969809) Homepage

    While the judges are clearly biased, there is value in their point:

    the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts

    This is true: How can you have an adversarial process when the adversary isn't allowed to know that anything is happening? But there still needs to be some adversary. The problem is bigger than this though.

    Ultimately, this court isn't even a court by any modern definition. No adversarial process. The judges are appointed without any confirmation or oversight [wikipedia.org]. There is no appeals court. [slashdot.org] The NSA lies to the judges anyway. [slashdot.org] And the department that oversees them ignores complaints by the judges. [usatoday.com]

    How is this a court at all?

  • by Bootsy (33005) on Wednesday January 15, 2014 @05:52PM (#45969855) Homepage

    Snowden for President!

  • Insignificant (Score:5, Insightful)

    by PopeRatzo (965947) on Wednesday January 15, 2014 @05:52PM (#45969859) Homepage Journal

    Who cares what the FISA judges think about the reforms? I mean, they're not the boss of the government.

    This notion that there is some widespread fear in the government of how agencies and entities will react to changes in he surveillance regime are starting to get a little alarming. If you look at the NYTimes story here: http://t.co/lSEb6vWXSi [t.co], you will see the phrase, "backlash from national security agencies" in regard to reforms to surveillance. Who are they that now elected officials, who are charged with oversight over these agencies, have to worry about intelligence agencies' "backlash"? There have been several other stories recently that have mentioned similar "consequences" from the agencies if the scope or powers of those agencies were to be limited in any way.

    I guess that tells us who's really in charge.

    I'm telling you, unless we can figure out a way to chop this surveillance regime down to size, and quick, there is absolutely no chance that any other national problem can ever be fixed in any significant way. Not the economy, not security, not social problems, not anything. When Americans finally internalize the fact that they are always being watched and that our own security agencies view them as a threat, there will be a sickness over the American people like none we have ever seen before.

    To this day, people from places like East Germany and other surveillance states have it in the back of their heads that there is always someone watching. As the husband of a woman from Eastern Europe, I know this to be true from my experience with family and friends. Once you have Big Brother in your head, he never goes away, maybe not for generations.

    I would absolutely rather take my chances with the terrorists than see the US go on this way much longer.

  • Re:It's rigged (Score:5, Insightful)

    by Astro Dr Dave (787433) on Wednesday January 15, 2014 @05:55PM (#45969909)

    Fire them and throw them into jail.

    A federal judge will never go to prison for rendering judgments favorable to the administration.

    Soap box, ballot box, jury box... all have been subverted or suppressed to the point of failure. Massive protests? We had some a couple years ago, they were shut down by riot police. Elections are subverted by the money and connections necessary to get your name on a ballot. The jury box is of little utility. The role of a jury today is lessened from what it once was. The DoJ is more interested in prosecuting whistle-blowers while declining to prosecute bankers or even investigate documented illegal acts within the Executive branch, past and present. Hell, Holder even thinks he can justify extra-judicial killings of Americans.

    "America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards." -- Claire Wolfe

    The "awkward stage" ends when the populace is more concerned with civil rights than American Idol. I don't see that happening yet. It might be possible to reign in some abusive practices without violence, but the more time passes the more difficult that will be.

  • Rubbish! (Score:5, Insightful)

    by s.petry (762400) on Wednesday January 15, 2014 @07:06PM (#45970591)

    The fact is, the court does not have to reveal names to have public monitoring. Claiming that names of suspects are required, as you have shilled in the past, is irrational and illogical. Every person in court could be named "John Doe" for the proceedings, and every privacy and liberty advocate would be fine with that method.

    What people want made public is the proceedings themselves. How are they ruling that John Doe is worthy of surveillance? Is the evidence being presented gathered legally and ethically? Is there even evidence presented to the courts, or is this simply a rubber stamp? What methods rulings are the judges giving and what powers are they granting to these agencies? Are the rulings and powers being granted legal?

    Your point is not just irrational, it evades the reason people are demanding either these courts become open or we shut them down. Perhaps you should read what Due Process is, and what the Constitution states regarding the Justice system and your Liberty. You won't, because you are a habitual shill for a pro authoritarian state and it's agencies.

"Mach was the greatest intellectual fraud in the last ten years." "What about X?" "I said `intellectual'." ;login, 9/1990

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