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Related: Editorials & Other Articles, Issue Forums, Alliance Forums, Region ForumsRetired 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:
Its an anointment process. Its not a selection process. But you know, its not boat rockers. So you have a [federal] bench which is way more conservative than before.
This is a subset of that. And its 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
byeya
(2,842 posts)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.
CanonRay
(14,038 posts)I have no faith in that rubber stamp outfit.
MNBrewer
(8,462 posts)but I agree with you, CanonRay
A Simple Game
(9,214 posts)that President Obama appointed the judges.
HardTimes99
(2,049 posts)warrant that Snowden leaked, was named to the federal bench by (Big surprise) Reagan. Roberts selected Vinson for the FISA court.
hrmjustin
(71,265 posts)dkf
(37,305 posts)We really have no idea what is going on, do we?
magellan
(13,257 posts)...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.
postulater
(5,075 posts)It seems to be appropriate more frequently lately.
L0oniX
(31,493 posts)postulater
(5,075 posts)Zappa was right.
tavalon
(27,985 posts)has been on my short list of go to "smileys" lately.
postulater
(5,075 posts)yup. looks good.
treestar
(82,383 posts)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:
http://biotech.law.lsu.edu/cases/nat-sec/duggan.htm
ohheckyeah
(9,314 posts)cancer but who wants either?
bread_and_roses
(6,335 posts)"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)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.
L0oniX
(31,493 posts)ArcticFox
(1,249 posts)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.
Mojorabbit
(16,020 posts)kenny blankenship
(15,689 posts)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)I could not post that sort of nonsense with a straight face. It boggles the mind.
Romulus Quirinus
(524 posts)delrem
(9,688 posts)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)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)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)(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.
HardTimes99
(2,049 posts)panzerfaust
(2,818 posts)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)speaking truth to power. This era of secret courts and secret law needs to come to a close if democracy is to flourish.
forestpath
(3,102 posts)For practical purposes, it's an oxymoron.
nadinbrzezinski
(154,021 posts)n2doc
(47,953 posts)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!
nadinbrzezinski
(154,021 posts)And partisan
Monkie
(1,301 posts)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)Let me get under the bed with my blankie!!!!
It used to be Commies...same thing, dif'rent decade.
Monkie
(1,301 posts)nadinbrzezinski
(154,021 posts)A milk (run) if you will...
L0oniX
(31,493 posts)...a brand new blankie.
I figure you might want to give this to few others.
nadinbrzezinski
(154,021 posts)Thank you.
L0oniX
(31,493 posts)Jackpine Radical
(45,274 posts)KittyWampus
(55,894 posts)n2doc
(47,953 posts)KittyWampus
(55,894 posts)nadinbrzezinski
(154,021 posts)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)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.
L0oniX
(31,493 posts)cali
(114,904 posts)KittyWampus
(55,894 posts)Response to KittyWampus (Reply #16)
nadinbrzezinski This message was self-deleted by its author.
nadinbrzezinski
(154,021 posts)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.
KittyWampus
(55,894 posts)Tierra_y_Libertad
(50,414 posts)mbperrin
(7,672 posts)A secret court is really just an excuse to do what you want and lack the guts without some sort of cover.
marions ghost
(19,841 posts)ProSense
(116,464 posts)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
Introduced in the Senate as S. 1566 by Edward Kennedy (DMA) 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
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)...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)We all went through it. just sit back and enjoy the ride.
WillyT
(72,631 posts)frylock
(34,825 posts)cantbeserious
(13,039 posts)eom
MotherPetrie
(3,145 posts)We don't need to worry about it unless there's a repug in the WH!
progressoid
(49,827 posts)pacalo
(24,721 posts)DirkGently
(12,151 posts)reliable guardian of anyone's rights?
Power simply doesn't work that way.
blkmusclmachine
(16,149 posts).
Harmony Blue
(3,978 posts)to shed light on what hides in the darkness.
ReRe
(10,597 posts)K&R
... that's what I call Judge Nancy Gertner! Sort-of-in-a-way. No?