For secretive surveillance court, rare scrutiny in wake of NSA leaks(washingtonpost.com)
washingtonpost.com
For secretive surveillance court, rare scrutiny in wake of NSA leaks
http://www.washingtonpost.com/politics/for-secretive-surveillance-court-rare-scrutiny-in-wake-of-nsa-leaks/2013/06/22/df9eaae6-d9fa-11e2-a016-92547bf094cc_story.html?tid=rssfeed
6 comments
I'm hoping that this will all act as an incitement point to finally open up transparency on the aspects of the court and NSL/FISA warrants in general that don't actually contribute to national security.
I understand and agree completely with the need for secrecy and OPSEC but that's no reason to make these kinds of gag orders essentially permanent. Even the Navy lets their sailors discuss ship movements in/out of homeports once they've occurred.
Likewise it makes sense to keep detailed classifications on what's interceptable secret. But if a portion of the underlying law is Unconstitutional then that needs to be public. Yes, it makes it more difficult to do the job but that's the price we pay for living in a free society.
I understand and agree completely with the need for secrecy and OPSEC but that's no reason to make these kinds of gag orders essentially permanent. Even the Navy lets their sailors discuss ship movements in/out of homeports once they've occurred.
Likewise it makes sense to keep detailed classifications on what's interceptable secret. But if a portion of the underlying law is Unconstitutional then that needs to be public. Yes, it makes it more difficult to do the job but that's the price we pay for living in a free society.
You can't take WaPo articles on law at face value just as you'd never take a WaPo article on some scientific discovery at face value. The author seems confused about the nature of precedent here...
Courts interpret the Constitution as a matter of course, and so do federal agencies. They have to, for the simple reason that the Constitution does not allow federal courts to issue advisory opinions. An agency cannot ask a court: "is this Constitutional?" Similarly, a lower court cannot ask an appellate court: "is this Constitutional?" If a Constitutional question arises in the course of deciding a case, even a low level adjudicatory body (say, the Social Security Administration) is empowered to render an opinion on Constitutionality. That opinion might be binding precedent within that adjudicatory body, but, and this is the key, it's not precedent anywhere else. The federal government cannot cite the FISA courts 4th amendment interpretation as binding precedent in a federal district court case.
I'm very wary of secret courts and secret opinions. I think the public nature of dockets and opinions is one of the great virtues of the Anglo-American legal system. I don't think it's a good thing for the FISC court to keep these opinions secret. However, I think it's important to understand what is actually going on, not just some journalist's color on what is going on, so we can be worried about the right things and not the wrong things.
There is something to be worried about, and it's part of a larger problem. Congress has been increasingly chipping away at the scope of the federal judiciary. Citing overburdened federal courts (which are overburdened because Congress refuses to fill vacancies in a timely manner or to increase the number of judgeships to keep up with the amount of litigation), it creates alternative bodies to handle different kinds of disputes. Sometimes that's a fine thing (not every Social Security claim needs to go directly to federal district court), but it's also a worrying trend. By the way, it's totally Constitutional: Congress is explicitly empowered to set the jurisdiction of the lower (below the Supreme Court) federal courts as it sees fit. Indeed, it could abolish them entirely.
Courts interpret the Constitution as a matter of course, and so do federal agencies. They have to, for the simple reason that the Constitution does not allow federal courts to issue advisory opinions. An agency cannot ask a court: "is this Constitutional?" Similarly, a lower court cannot ask an appellate court: "is this Constitutional?" If a Constitutional question arises in the course of deciding a case, even a low level adjudicatory body (say, the Social Security Administration) is empowered to render an opinion on Constitutionality. That opinion might be binding precedent within that adjudicatory body, but, and this is the key, it's not precedent anywhere else. The federal government cannot cite the FISA courts 4th amendment interpretation as binding precedent in a federal district court case.
I'm very wary of secret courts and secret opinions. I think the public nature of dockets and opinions is one of the great virtues of the Anglo-American legal system. I don't think it's a good thing for the FISC court to keep these opinions secret. However, I think it's important to understand what is actually going on, not just some journalist's color on what is going on, so we can be worried about the right things and not the wrong things.
There is something to be worried about, and it's part of a larger problem. Congress has been increasingly chipping away at the scope of the federal judiciary. Citing overburdened federal courts (which are overburdened because Congress refuses to fill vacancies in a timely manner or to increase the number of judgeships to keep up with the amount of litigation), it creates alternative bodies to handle different kinds of disputes. Sometimes that's a fine thing (not every Social Security claim needs to go directly to federal district court), but it's also a worrying trend. By the way, it's totally Constitutional: Congress is explicitly empowered to set the jurisdiction of the lower (below the Supreme Court) federal courts as it sees fit. Indeed, it could abolish them entirely.
The only way to know if a law is "constitutional" or not is to subject it to challenge it in the (non-secret) court system.
If a law cannot be challenged because either its existence is secret or the process of its enforcement is secret, or both, then we can never know whether such a law is or is not constitutional.
I guess some in favor of the status quo would argue that sometimes scrutiny (to use the word in the article's title) of laws and their enforcement is imprudent? Because it threatens "national security"?
Should the public be permitted to scrutinize the laws that make what NSA is doing "legal"? Why or why not?
If a law cannot be challenged because either its existence is secret or the process of its enforcement is secret, or both, then we can never know whether such a law is or is not constitutional.
I guess some in favor of the status quo would argue that sometimes scrutiny (to use the word in the article's title) of laws and their enforcement is imprudent? Because it threatens "national security"?
Should the public be permitted to scrutinize the laws that make what NSA is doing "legal"? Why or why not?
The very idea of a secret law that cannot be challenged is certainly not what the writers of the Constitution ever imagined. Once one law can be successfully hidden from the people then in the future all laws will be designed in the same way. At that point it no longer matters what we want or what the Constitution says.
So, the "court" hears only one argument, never any counter argument. I guess it is no surprise they always vote in favor of the argument presented rather the the argument never presented.
"Judges generally confer only with government lawyers, and out of public view. Yet the judges have the power to interpret the Constitution and set long-lasting and far-reaching precedent on matters involving Americans’ rights to privacy and due process under the Fourth Amendment. And this fast-growing body of law is almost entirely out of view of legal scholars and the public. Most Americans do not have access to the judiciary’s full interpretation of the Constitution on matters of surveillance, search and seizure when it comes to snooping for terrorist plots — and are limited in their ability to challenge it"
"The judges that are assigned to this court are judges that are not likely to rock the boat,” said Nancy Gertner, a former federal judge from Massachusetts who teaches at Harvard Law School. Gertner, a former defense and civil rights lawyer named to the bench by Democrat Bill Clinton, added: “All of the structural pressures that keep a judge independent are missing there. It’s one-sided, secret, and the judges are chosen in a selection process by one man."
I've never been particularly fond of Marbury vs. Madison (I'm not sure it was wise to trash the Common Law system), but if this is true it's potentially in violation of that precedent, by, apparently, creating a rival supreme court, whose rulings are secret and which is stacked with yes-men by the executive.
P.S. This story has restored some of my faith in WAPO, which has been questioned by some of their actions in this story.