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Ichingcarpenter

(36,988 posts)
Sat Jun 15, 2013, 10:42 AM Jun 2013

Retired Federal Judge: Your Faith In Secret Surveillance Court Is Dramatically Misplaced

A retired federal judge warned Friday against blind faith in the secret court deciding the scope of U.S. government surveillance. During a panel discussion on constitutional privacy protection in the wake of a leaked Foreign Intelligence Surveillance Court decision that revealed widespread NSA data collection,


U.S. District Judge Nancy Gertner stood up in the audience to counter the statements of conservative law professor Nathan Sales that secret surveillance requests are subject to meaningful judicial review.


She cautioned:
As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.


Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case.


One can only imagine what the dilution is in a national security setting.


Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said.



Gertner, now a professor at Harvard Law School who teaches criminal law and criminal procedure, was a civil rights and criminal defense lawyer before being confirmed to the federal bench in 1993.


In an interview with ThinkProgress,

Gertner explained that the selection process for the secret national security court formed in 1978 is more “anointment” than appointment, with the Chief Justice of the United States — now John G. Roberts — selecting from a pool of already-conservative federal judges those he thinks are most suited to decide national security cases in secret:



It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before.


This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion.





http://thinkprogress.org/justice/2013/06/14/2163441/retired-federal-judge-your-faith-in-secret-surveillance-court-is-dramatically-misplaced/?mobile=nc

70 replies = new reply since forum marked as read
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Retired Federal Judge: Your Faith In Secret Surveillance Court Is Dramatically Misplaced (Original Post) Ichingcarpenter Jun 2013 OP
Well said Judge Gertner. byeya Jun 2013 #1
Faith? What faith. CanonRay Jun 2013 #2
There's evidence of that "faith" all over DU these days. MNBrewer Jun 2013 #12
Some of that misplaced faith probably came from people thinking A Simple Game Jun 2013 #22
Roger Vinson, the FISA judge who signed off on the Verizon HardTimes99 Jun 2013 #36
Welcome to DU my friend! hrmjustin Jun 2013 #42
It get more and more disconcerting by the day. dkf Jun 2013 #3
This octopus is so huge and has so many arms magellan Jun 2013 #9
Is there a smiley for sh*tf**k? postulater Jun 2013 #4
Here's one for ya... L0oniX Jun 2013 #37
I like that one. postulater Jun 2013 #59
The one banging its head on the brick wall tavalon Jun 2013 #55
I'll have to start using that, seems about right. postulater Jun 2013 #60
Was she a FISA judge? treestar Jun 2013 #5
A heart attack is probably better than ohheckyeah Jun 2013 #31
Oh, please. What kind of arguement is that? bread_and_roses Jun 2013 #33
What kind of response is this? treestar Jun 2013 #34
"improvement" Eventually they will make shit that don't stink. L0oniX Jun 2013 #38
You seem to think what you don't know can't hurt you ArcticFox Jun 2013 #41
Your posts continue to amaze me. nt Mojorabbit Jun 2013 #51
Are we pretending that we are just finding out about Treestar now?? kenny blankenship Jun 2013 #52
Hence my statement "continue to amaze" Mojorabbit Jun 2013 #53
I lol'd nt Romulus Quirinus Jun 2013 #56
As long as it's secret justice from a secret court delrem Jun 2013 #63
Right: The incredibly hypocratic response which I simply cannot understand. panzerfaust Jun 2013 #70
1. foreign intelligence information - while I don't agree it necessarily should be, Ms. Toad Jun 2013 #64
Star Chamber court stocked with pet judges compliant to the State. kenny blankenship Jun 2013 #6
nailed it - nt HardTimes99 Jun 2013 #39
"Yawn" The most common response in this country. panzerfaust Jun 2013 #69
"It’s an anointment process." It's good to see more and more prominent people think Jun 2013 #7
Anybody who has faith in a secret court is nuts. forestpath Jun 2013 #8
+1 wtmusic Jun 2013 #25
Oh com'on, sensible woodchucks will be here soon nadinbrzezinski Jun 2013 #10
They already appeared n2doc Jun 2013 #13
Nah, just a true believer nadinbrzezinski Jun 2013 #14
and someone who doesnt believe international law or the nuremberg principle applies to the US Monkie Jun 2013 #27
Now you said that scary word again nadinbrzezinski Jun 2013 #28
i had better go shopping, that will cure me of my deviant thoughts n/t Monkie Jun 2013 #29
Seriously I do need to go get groceries. nadinbrzezinski Jun 2013 #30
A gift for you... L0oniX Jun 2013 #45
Blankie nadinbrzezinski Jun 2013 #48
You just gave me a wonderful idea for a hanging baby dazzler toy. L0oniX Jun 2013 #46
You rang? Jackpine Radical Jun 2013 #15
that isn't what that poster said and it's f*cked up that you don't respond to that poster directly KittyWampus Jun 2013 #20
You need poutrage management therapy n/t n2doc Jun 2013 #43
LOL! This is one of the very FEW things posted yet on DU that contains actual information. KittyWampus Jun 2013 #17
Is that a new (old, actually ancient) nadinbrzezinski Jun 2013 #18
You're not as well informed as you pretend to be. Reactionary screamers never are. How clueless you KittyWampus Jun 2013 #23
+1 L0oniX Jun 2013 #40
that's just plain old fashioned common sense. cali Jun 2013 #11
It's nice to see a DU'er posting actual information about this issue. KittyWampus Jun 2013 #16
This message was self-deleted by its author nadinbrzezinski Jun 2013 #19
You know, I am opening the sensible woodchuck room in the ignore list nadinbrzezinski Jun 2013 #21
Pathetic,you need to tell me you are putting me on ignore? FOR APPRECIATING THE OP? How fucked up. KittyWampus Jun 2013 #24
We should trust in "secret" courts as much as we do in secret formula diet plans. Tierra_y_Libertad Jun 2013 #26
AND in secret investment plans a la Madoff. mbperrin Jun 2013 #35
Another true patriot steps forward marions ghost Jun 2013 #32
From the link: ProSense Jun 2013 #44
I went to your link, and I am still confused... Beer Swiller Jun 2013 #58
You're new here. Being confused by Prosense is the essence of her charm. Egalitarian Thug Jun 2013 #67
K & R !!! WillyT Jun 2013 #47
prolly another one of those ratfucker chinese spies i've been reading about here frylock Jun 2013 #49
So Conservative Judicial Cronies Are Deciding The Fate Of Everyone - Have Any Discomfort With That? cantbeserious Jun 2013 #50
But OBAMA is president now! That makes it OK! MotherPetrie Jun 2013 #54
Don't worry - if you haven't done anything wrong, you don't have anything to worry about! progressoid Jun 2013 #57
K&R. pacalo Jun 2013 #61
And why would we? When has secret power turned out to be a DirkGently Jun 2013 #62
. blkmusclmachine Jun 2013 #65
Not surprised but I hope more come out Harmony Blue Jun 2013 #66
Another whistle blower! ReRe Jun 2013 #68
 

byeya

(2,842 posts)
1. Well said Judge Gertner.
Sat Jun 15, 2013, 10:46 AM
Jun 2013

These "judges" that rule on formerly uncontitutional inroads into our rights have too little scrutiny before and during their tunure and have too cozy a relationship with the intelligence agencies, imo.

A Simple Game

(9,214 posts)
22. Some of that misplaced faith probably came from people thinking
Sat Jun 15, 2013, 11:48 AM
Jun 2013

that President Obama appointed the judges.

 

HardTimes99

(2,049 posts)
36. Roger Vinson, the FISA judge who signed off on the Verizon
Sat Jun 15, 2013, 01:03 PM
Jun 2013

warrant that Snowden leaked, was named to the federal bench by (Big surprise) Reagan. Roberts selected Vinson for the FISA court.

magellan

(13,257 posts)
9. This octopus is so huge and has so many arms
Sat Jun 15, 2013, 11:04 AM
Jun 2013

...I sincerely doubt anyone can know what's really going on. And I honestly don't know how anyone could think otherwise, or trust it's all aboveboard all the time.

treestar

(82,383 posts)
5. Was she a FISA judge?
Sat Jun 15, 2013, 10:57 AM
Jun 2013

Other judges might have other opinions. We don't have to agree with her just because she is an Article III judge. That does not mean show knows the FISA court is corrupt or always wrong.

The FISA court would be a difficult thing to judge the performance of. While that might be a problem, it's not one anyone is discussing, just assuming it's all a great violation of civil liberties.

No one puts their faith in that court per se, and in fact, it's an improvement over the previous situation, which was:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment. See United States v. Truong Dinh Hung, 629 F.2d 908, 912-14 (4th Cir. 1980), cert. denied, 454 U.S. 1144, 71 L. Ed. 2d 296, 102 S. Ct. 1004 (1982); United States v. Buck, 548 F.2d 871, 875 (9th Cir.), cert. denied, 434 U.S. 890, 54 L. Ed. 2d 175, 98 S. Ct. 263 (1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.) (en banc), cert. denied, 419 U.S. 881, 42 L. Ed. 2d 121, 95 S. Ct. 147 (1974); United States v. Brown, 484 F.2d 418, 426 (5th Cir. 1973), cert. denied, 415 U.S. 960, 39 L. Ed. 2d 575, 94 S. Ct. 1490 (1974); but see Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594, 633-651 (D.C. Cir. 1975), (dictum), cert. denied, 425 U.S. 944, 48 L. Ed. 2d 187, 96 S. Ct. 1685 (1976).

http://biotech.law.lsu.edu/cases/nat-sec/duggan.htm

bread_and_roses

(6,335 posts)
33. Oh, please. What kind of arguement is that?
Sat Jun 15, 2013, 12:22 PM
Jun 2013

"Other judges might have other opinions." - gee, ya think?

"We don't have to agree with her just because she is an Article III judge." - like her's is the only voice out there? Or that variants of what she is saying it is not also being said by numerous other credible voices?

"That does not mean show knows the FISA court is corrupt or always wrong." - "not corrupt" or "not always wrong" does not = constitutional

"The FISA court would be a difficult thing to judge the performance of." That would be by design, yes? And so we are to simply "trust" TPTB or what?

"While that might be a problem, it's not one anyone is discussing, just assuming it's all a great violation of civil liberties." - Just assuming based on nothing? As if Sanders and Ray McGovern and a host of others have not raised questions and concerns?

treestar

(82,383 posts)
34. What kind of response is this?
Sat Jun 15, 2013, 12:40 PM
Jun 2013

Ray McGovern and Sanders must not know much about FISA either. Whether it is constitutional is up to the courts. I notice you ignored that part.

ArcticFox

(1,249 posts)
41. You seem to think what you don't know can't hurt you
Sat Jun 15, 2013, 01:13 PM
Jun 2013

You assume that because it's never been found unconstitutional, the FISA court it's protecting our rights.

The FISA court has never been subject to review by an Article III court. It's decisions have always been secret and it rarely, if ever, denies a requested surveillance.

The rational assumption in light of this and the secrecy surrounding it's decisions is that our rights are NOT being upheld.

kenny blankenship

(15,689 posts)
52. Are we pretending that we are just finding out about Treestar now??
Sat Jun 15, 2013, 01:47 PM
Jun 2013

We have no right to be outraged. It is what it is, and it's been like that since it got here.

Like you didn't know all along! You gave your silent consent to Treestar everytime you rolled your eyes at a Treestar post and didn't reply. Now you have to live with it.

Mojorabbit

(16,020 posts)
53. Hence my statement "continue to amaze"
Sat Jun 15, 2013, 01:52 PM
Jun 2013

I could not post that sort of nonsense with a straight face. It boggles the mind.

delrem

(9,688 posts)
63. As long as it's secret justice from a secret court
Sat Jun 15, 2013, 10:27 PM
Jun 2013

with secret evidence and for a secret purpose according as secret laws with a secret interpretation, I'm fine with that! Just so long as Obama is doing it. Now if it were exactly the same but with McCain/Palin doing it, that'd be a different story, that'd be *just wrong*!

 

panzerfaust

(2,818 posts)
70. Right: The incredibly hypocratic response which I simply cannot understand.
Sun Jun 16, 2013, 07:59 AM
Jun 2013

The question is will we have a government of law underlain by the Constitution, or some form of totalitarianism?

However soft and benevolent the latter may appear when Your Guy has the reins, it looks much different when The Others take them up.

“Those who don't know history are doomed to repeat it.” ~Edmund Burke.{1}

Sadly, those ignorant masses are once again going to carry a nation into despotism.

{2}
------------
{1} (Ahhhh - a British MP who strongly supported the rights of the colonies against those of the Crown)
{2} Yes, I know. But visually compelling.

Ms. Toad

(33,915 posts)
64. 1. foreign intelligence information - while I don't agree it necessarily should be,
Sat Jun 15, 2013, 10:39 PM
Jun 2013

constitutionally it is a very different question.
2. http://www.nytimes.com/2013/06/15/opinion/collins-the-other-side-of-the-story.html?smid=fb-share&_r=0#p[PttAth],h[PttAth,3]
3. rubber stamp: Last year, the feds made 1,856 requests to FISA judges and got 1,856 thumbs-up
4. http://www.democraticunderground.com/10023024549

ETA: Oh yeah, almost forgot:
5. Article III judges have their choice of the top graduates of the top law schools in the country as clerks who, in case you weren't aware, do most of the research and initial drafts of the opinions which issue from Article III courts - so you get two (or more) of the best minds in the country - one with (generally speaking) vast experience, the other with very recent training in research and exposure to all of the most common practice fields which come before the judge). FISA courts, not so much.

kenny blankenship

(15,689 posts)
6. Star Chamber court stocked with pet judges compliant to the State.
Sat Jun 15, 2013, 10:59 AM
Jun 2013

(if you don't know what the term Star Chamber refers to, maybe you should find out)

FISA was an exception to the Constitution in the first place. Initially it issued fewer than a hundred court orders a year - and that was back when we were confronted by the Soviet nuclear menace and their vast spying efforts. But that wasn't good enough for the Police Staters. They have modified the FISA law and practice, poured a can of Patriot Act accelerant over it, and opened the hole in the Constitution to the point where the rights of every US citizen can be dragged through it and dropped into a bottomless pit.

 

panzerfaust

(2,818 posts)
69. "Yawn" The most common response in this country.
Sun Jun 16, 2013, 07:44 AM
Jun 2013

The Guardian was chosen by Snowden because the media in this country are entirely complicit in The New Order.


So, sadly, seems to be most of the population.

Polls taken over the years have consistently shown that the vast majority of Americans have no idea of what the Bill of Rights is, and that most would not support many of those rights - when they were presented as a prospective amendment to the Constitution.

On of my favorites of these polls {1} - besides showing that 83% could not pass a basic public-school level test on American history - had a majority ascribing the famous statement "From each according to his ability, to each according to his needs" to either George Washington, Thomas Paine, or Barack Obama.

But a close runner up was the poll showing that nearly 9 of 10 Americans cannot name even TWO of the rights delineated in the Declaration of Independence.{2}

{1} http://www.prnewswire.com/news-releases/83-percent-of-us-adults-fail-test-on-nations-founding-78325412.html
{2} http://www.dailymail.co.uk/news/article-1368482/How-ignorant-Americans-An-alarming-number-U-S-citizens-dont-know-basic-facts-country.html

 

think

(11,641 posts)
7. "It’s an anointment process." It's good to see more and more prominent people
Sat Jun 15, 2013, 11:00 AM
Jun 2013

speaking truth to power. This era of secret courts and secret law needs to come to a close if democracy is to flourish.

n2doc

(47,953 posts)
13. They already appeared
Sat Jun 15, 2013, 11:18 AM
Jun 2013

See response #5. Apparently she can't know anything because she wasn't a judge in that specific program. She must be a republican plant!

 

Monkie

(1,301 posts)
27. and someone who doesnt believe international law or the nuremberg principle applies to the US
Sat Jun 15, 2013, 11:59 AM
Jun 2013

because if democrats dont believe in droning babies the right wing can say the left is on the side of the terrorists?!?!

 

nadinbrzezinski

(154,021 posts)
28. Now you said that scary word again
Sat Jun 15, 2013, 12:02 PM
Jun 2013

Let me get under the bed with my blankie!!!!

It used to be Commies...same thing, dif'rent decade.

 

KittyWampus

(55,894 posts)
20. that isn't what that poster said and it's f*cked up that you don't respond to that poster directly
Sat Jun 15, 2013, 11:45 AM
Jun 2013
 

nadinbrzezinski

(154,021 posts)
18. Is that a new (old, actually ancient)
Sat Jun 15, 2013, 11:42 AM
Jun 2013

Tactic?

Free clue, outside your circle it ain't working and you guys remind me of bushies, not surprising though, true believers and partisans act the same exact way.

 

KittyWampus

(55,894 posts)
23. You're not as well informed as you pretend to be. Reactionary screamers never are. How clueless you
Sat Jun 15, 2013, 11:48 AM
Jun 2013

are is the fact I have problems with the NSA and the issues raised. And at no point have I EVER indicated otherwise.

But you go ahead and call those of us who prefer FACTS to bullshit true believers, enablers or whatever else sort of slur so you can continue your circle jerk.

It's the reactionary screamers on DU who are in a small circle feeding each others ill-informed ranting.

Response to KittyWampus (Reply #16)

 

nadinbrzezinski

(154,021 posts)
21. You know, I am opening the sensible woodchuck room in the ignore list
Sat Jun 15, 2013, 11:47 AM
Jun 2013

Don't worry, there are two of you already there. *plonk*

I really am loosing tolerance with the true believers. Suffice it to say party aparatchticks people have memories.

Good bye.

mbperrin

(7,672 posts)
35. AND in secret investment plans a la Madoff.
Sat Jun 15, 2013, 12:47 PM
Jun 2013

A secret court is really just an excuse to do what you want and lack the guts without some sort of cover.

ProSense

(116,464 posts)
44. From the link:
Sat Jun 15, 2013, 01:19 PM
Jun 2013
The surveillance court has authorized almost every request for government surveillance since 1979, and flat-out rejected just .03 percent of the government requests, the Wall Street Journal reported Sunday. In the wake of the leak, the secret court held Wednesday that its own rules did not prevent the release of its decisions, should a federal court order their release. The plaintiffs will now have to continue their lawsuit to make one particular decision public. Senators introduced a bill this week to require the Attorney General to declassify all major FISC decisions.


I posted this question the other day:

If the Patriot Act is repealed, should the secret FISA Court be abolished?
http://www.democraticunderground.com/10022999502

Legislative history

Introduced in the Senate as S. 1566 by Edward Kennedy (D–MA) on May 18, 1977
Committee consideration by: Senate Select Committee on Intelligence, Committee on the Judiciary
Passed the Senate on March 20, 1978 (95-1)
Passed the House on September 7, 1978 (246-128)
Reported by the joint conference committee on October 5, 1978; agreed to by the Senate on October 9, 1978 (Without objection) and by the House on October 12, 1978 (226-176)
Signed into law by President Jimmy Carter on October 25, 1978

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


The Foreign Intelligence Surveillance Court (FISC) is a special U.S. federal court tasked with authorizing requests for surveillance both inside and outside the United States. Because of the sensitive nature of these requests, the FISC is a “secret court.” The FISC rulings, orders, and other deliberations are highly classified. The Court’s rulings can include substantive interpretations of the law that could be quite different from a plain reading of the law passed by Congress, and such interpretations determine the extent of the government’s surveillance authority. There is certainly information included in the Court’s orders and rulings that is necessarily classified, related to the sources and methods of collection used by intelligence agencies. However, the substantive legal interpretations of what the FISC says the law means should be made public.

Senators: End Secret Law
http://www.democraticunderground.com/10022993363

I guess the other question is: Why did it take so long to have this debate?




 

Beer Swiller

(44 posts)
58. I went to your link, and I am still confused...
Sat Jun 15, 2013, 08:27 PM
Jun 2013

...Do you think the secret FISA court should be abolished? If you say so anywhere, I must have missed it. Thanks.

 

Egalitarian Thug

(12,448 posts)
67. You're new here. Being confused by Prosense is the essence of her charm.
Sun Jun 16, 2013, 01:00 AM
Jun 2013

We all went through it. just sit back and enjoy the ride.

 

MotherPetrie

(3,145 posts)
54. But OBAMA is president now! That makes it OK!
Sat Jun 15, 2013, 02:08 PM
Jun 2013

We don't need to worry about it unless there's a repug in the WH!

DirkGently

(12,151 posts)
62. And why would we? When has secret power turned out to be a
Sat Jun 15, 2013, 10:27 PM
Jun 2013

reliable guardian of anyone's rights?

Power simply doesn't work that way.
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