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View Diary: Former FISA Judge Breaks Ranks (475 comments)

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  •  But the FISA court doesn't take orders from the (7+ / 0-)

    president.  I don't get why it matters who was president at the time.  But since people seem obsessed with that, yes the changes were made in 2008, implemented in thereafter.  But the "secret body of common law", the legal framework developed by the FISA court was something those judges did on their own, not under direction or limitation of the president.

    The change described in the diary is about broad-based warrants being granted without a "devil's advocate".   I favor "devil's advocate" in those cases.  But is it up to the executive branch to implement a devil's advocate system on its own accord, without it being required by law?  I don't see that, frankly.

    Even in normal criminal law, once a formal charge is made, the government only offers the accused a public defender because it is required by law (by the Constitution, I believe).  If it weren't required by law, I find it hard to believe that the branch of government that is doing prosecutions would provide public defenders on its own accord.

    Search warrants are a different matter.  Generally there is no defense, but for a broad-based warrant request (as opposed to a request that targets a specific individual or premises), I agree that there should e a devil's advocate, but I would not expect the executive branch to implement such a thing without a law requiring it.

    •  You have to understand... (1+ / 0-)
      Recommended by:
      cherish0708

      The Diarist couldn't just write a Diary about the UK article (which didn't mention the President's name once) without throwing the obligatory jab at Obama. That would be madness!

      Please proceed, Governor.

      by USArmyParatrooper on Tue Jul 09, 2013 at 12:23:59 PM PDT

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      •  We want this to change.. (15+ / 0-)

        I dont blame Obama, I just want his Administration to understand that this dangerous practice must be ENDED before he leaves office, or the NEXT guy, a 50-50 crap shoot between a Conservative Democrat and a Frothy-Mouthed Christianist Domininist, will get the whole program lock stock and barrel.

        Not good. Help us pressure Mr. Obama to end it. It is his responsibility now.

        Figures don't lie, but liars do figure-Mark Twain

        by OregonOak on Tue Jul 09, 2013 at 01:09:46 PM PDT

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        •  Exactly (9+ / 0-)

          WHAT is it going to take to stop the knee-jerk defenses and whining about "obligatory jabs" at this particular President long enough to understand this:

          this dangerous practice must be ENDED before he leaves office, or the NEXT guy, a 50-50 crap shoot between a Conservative Democrat and a Frothy-Mouthed Christianist Domininist, will get the whole program lock stock and barrel.
          This should not be difficult for even the staunchest supporter of this President--hell, of ANY President--to understand, assuming they actually read the diary under discussion. It's dangerous to all of us and it is dangerous to what remains of our Constitution. And one of the damned judges is sitting there telling them this, firsthand.

          What else can you do? What will it take to end the whining and complaining about "criticizing The Personality of the current POTUS" as if that's relevant, compared to what we're faced with. It's as if they WANT someone like Jeb Bush to have this kind of fucking power.  That's insane, and I'm just about done taking any of these kinds of people the least bit seriously.
        •  I dion't see the president creating a "devil's (2+ / 0-)
          Recommended by:
          Larsstephens, cherish0708

          advocate" system that is not described by law, and even if he did, the next president could undo it.

          It takes legislation to create such a thing on a permanent basis.  

          •  I don't even think it would be a good idea (2+ / 0-)
            Recommended by:
            Tony Situ, Barton Funk

            for him to try to. Since it is supposed to be an adversary to his administration he would have a potential conflict of interest in trying to craft it. The special prosecutor gigs have generally not worked out well.

          •  in this case, the devil aint in the details (0+ / 0-)

            but we're in for a helluva ride anyway.

          •  Under this Theory... (0+ / 0-)

            Every President has the obligation to expand Presidential Power to the utmost limit, and then, when out of office, complain about how Presidential Power is Out of Control! Something MUST BE DONE!

            Of course, the remedy is Congress. However, as the Executive Branch authority, wouldn't it be nice and helpful to have a President go to Congress BEFORE HIS TERM ENDS.. hopefully, well before, and for the good of the country, propose a package of Limitations on Presidential Power, including changing the War Powers Act, considering how much time and blood and money Obama has had to spend Undoing the Wild and Unconstitutional Legacy of GWB?

            Talk about Legacy.... I got your Legacy right here.  

            Figures don't lie, but liars do figure-Mark Twain

            by OregonOak on Wed Jul 10, 2013 at 08:50:14 AM PDT

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    •  The citizens review panel (10+ / 0-)

      is the responsibility of the Executive Branch.  They failed to appoint one for a very long time and chose not to allow that panel to be an active part of FISA's judicial review of DOJ requests.  According to their response to this news, they also don't seem to be very respectful of their duties and responsibilities, hence, not a real citizen's review panel.

      "If you can't take their money, eat their food, drink their booze and then vote against them, you have no business being in DC."

      by Betty Pinson on Tue Jul 09, 2013 at 12:32:06 PM PDT

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    •  I'm not sure you're fully comprehending (15+ / 0-)

      what's going on.

      The FISA Court does not meet on its own volition to develop the "secret body of common law." They are interpreting law in secret ways based on arguments given by Administration lawyers. It's true that they're not being directed by the President; however, when judges only hear one side of the argument--the NSA's side--and make legal decisions based on that, they might as well be. That's the entire reason we('re supposed to) have an adversarial system.

      In addition, you say it's not up to the executive branch to make a "devil's advocate" system if it's not required by law. First of all, it arguably is required by the Bill of Rights. Beyond that, though, I don't see how this in any way exonerates the Administration. Certainly, I don't expect the Administration to make the FISC adversarial without strong external pressure, either from Congress or the public or both. But all that means is, I don't expect the Administration to do the right thing unless they're forced to. That's not a defense of them; it's a criticism.

      Would any other Administration act differently? Probably not. Again, though, that's in no way a defense of them.

      "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

      by TealTerror on Tue Jul 09, 2013 at 01:03:32 PM PDT

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      •  Agreed (6+ / 0-)
        I don't expect the Administration to do the right thing unless they're forced to. That's not a defense of them; it's a criticism.
        And it's a not a criticism of this specific Presidential administration--because it can apply to any of them coming down the pike. NO POTUS or his branch are going to "do the right thing" in this kind of situation unless they are forced to.  
      •  By what authority can the administration (5+ / 0-)

        create an adversarial court?  Obviously such a system is necessary. How could the administration implement it unilaterally?

        •  It would like require legislation. n/t (3+ / 0-)
          •  Exactly. (7+ / 0-)

            So instead of focusing on Senator Obama's culpability in voting for the law, or arguing for President Obama to effectively nullify the law, why don't we examine ways in which we can compel Congress to change the law? This change is badly needed. We shouldn't waste time satisfying ourselves that Obama is a "disappointment", because that will change nothing.

            •  We can do both (1+ / 0-)
              Recommended by:
              TealTerror

              Is that not self-evident?  Given the constitutional rights at stake here, I think it is incumbent upon us to target both the executive and the congress.  And we cannot ignore the fact that the current president has expanded this program and continues to collect data on all US citizens without a warrant that meets the requirements of the fourth amendment.

              •  The executive branch doing the prosecuting (0+ / 0-)

                setting up its own devil's advocate system would be questioned as to its credibility anyway.  Imagine if the executive branch set up that system and the FISA judges kept approving warrants?  Then the devil's advocate system would be dismissed as a sham, set up by the prosecuting branch of government just for show, even if the FISA rulings actually had total merit.

                No, it's better for Congress to pass a law setting up the system.  Prosecutors setting up the advocacy system on its own accord might look like foxes watching the hen house.

        •  Well, as a stopgap measure, (4+ / 0-)
          Recommended by:
          PhilJD, 3goldens, aliasalias, Barton Funk

          I don't see why there'd be anything stopping them from giving some ACLU lawyers security clearances and letting them argue in the FISA court. Unless there's a law that specifies the FISC can only hear the government's side, but I doubt that. I could be wrong about this, I admit--I'm no expert.

          Either way, though, the downside to this is if the administration does it unilaterally, the next administration could dismantle it unilaterally. Legislation is clearly necessary. Thus, the administration should also publicly come out in favor of such legislation and urge Congress to pass it.

          Unfortunately, given the administration's track record on these issues, I highly doubt either of those things will occur. Indeed, if such legislation were proposed, I suspect the administration would oppose it. But I'd be delighted to be proven wrong.

          "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

          by TealTerror on Tue Jul 09, 2013 at 01:51:38 PM PDT

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          •  MAybe the administration would oppose it. So what (1+ / 0-)
            Recommended by:
            Larsstephens

            That doesn't prevent congress from passing it.
            Reagan opposed making a federal MLK holiday.  The Congress ignored him, passing it by a huge majority, so he signed it even though he opposed it.

            In this case, I doubt President Obama would veto a bill creating "devil's advocate" even if he opposed it.

            Anyway, it seems that too many people are president-focused, and don't bother pressuring the legislative branch.  If the administration opposes legislation, then people give up in despair rather than lobbying Congress.  If the president supports legislation people like, then the people think that their work is done and they don't bother lobbying Congress.  Either way, people don't bother lobbying Congress.

            And in reality, the real obstacle to legislation wouldn't be the administration, but the GOP House.

            •  Plenty of people lobby Congress (2+ / 0-)
              Recommended by:
              3goldens, Barton Funk

              I don't know who you're aiming this comment at. It doesn't contradict anything I said. But the fact of the matter is, if the President opposes legislation, Democratic Congresspeople will be less likely to vote for it. That's worth pointing out.

              I don't know that House Republicans would be the "real obstacle." The ones with a more libertarian bent might very will be in favor of it. And they might look at it as an opportunity to go against the administration. The real obstacle, IMO, would be authoritarians in both parties.

              Incidentally, if this does move forward, we need to be careful about how exactly the "devil's advocate" structure would work. It can't just be a different administration official; too much potential for conflict of interest.

              "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

              by TealTerror on Tue Jul 09, 2013 at 05:44:15 PM PDT

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      •  It's "arguably required"? It's arguably not (0+ / 0-)

        required too, and the FISA judges take that route.

        The adversarial court system applies to actual trials, not search warrant requests (for what I would think are obvious reasons).  The reason that an adversarial system is being proposed in this matter is that the warrants being sought are broad rather than targeted at specific individuals (note that the judge quoted in this diary does not advocate a devil's advocate system for warrants targeted at individuals).  

        But the law that created the FISA court and the current law under which FISA court runs does not make any provision for "devil's advocate" when warrants are sought.  There is no "standing" for such an advocate as the current law exists.  What do you not get about that?

        What, is it that you think there is no hope of Congress altering the law to provide a devil's advocate, and so instead you demand the quick, though temporary, fix by demanding the executive  branch create that system on its own accord, knowing that the next president could undo it?
        Is that the reason your ire is aimed at the executive branch rather than the legislative branch, the branch that could make lasting change on this matter?

        •  I would appreciate it if you didn't psychoanalyze (2+ / 0-)
          Recommended by:
          3goldens, Barton Funk

          me over the internet in the future.

          Yes, I'm aware the (Roberts-appointed conservative) FISA judges disagree with me on this score. That's why I said "arguably," and didn't make a big deal out of it.

          You still seem to not be fully aware of what's going on. It's not just that the search warrants are incredibly broad. The FISA Court is also making (secret) interpretations of law. For example:

          In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.

          The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.

          It's unclear what exactly this means, since again this interpretation is secret, but from the NYT's wording it appears the NSA has ruled that the government cannot break the Fourth Amendment as long as it's trying to track "terrorists." This is quite literally secret law, made by a court that only hears the government's side of the argument.

          I don't understand what you mean by saying there's no "standing." Certainly, the FISA law does not require any sort of "devil's advocate." That does not stop the administration from providing one anyway. This would indeed be a temporary fix that the next President could reverse, which I explicitly admitted in a previous comment--which I know you saw, since you responded to it. Absent such legislation, however, the executive instituting this system by itself would at least be better than nothing.

          "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

          by TealTerror on Tue Jul 09, 2013 at 06:19:58 PM PDT

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          •  I'm trying to figure out why (0+ / 0-)

            on the one hand there is a branch of government that can legally pass law mandating the devil's advocate system on a permanent basis, and on the other hand there's a branch of government where its questionable whether it has the authority to implement such a system, and if it does to, it's only temporary anyway, why you focus on the latter rather than the former?

            And as Richard said elsewhere in this thread, the problem with the executive branch setting up a devil's advocate system on its own accord is that the prosecuting branch is setting up the system to argue against itself.  The conflict of interest is apparent.  And if, after setting up the system, the FISA judges still find NSA requests to have merit and grand the warrant requests, even after hearing arguments from the devil's advocate, civil libertarians would dismiss the devil's advocate system as a sham set up by the prosecutors for show.

            •  You're reading things into my posts (0+ / 0-)

              that aren't there. I don't see how I'm focusing on the executive instead of the legislative. I'm focusing on the NSA, and want to get any additional oversight it's possible to get.

              Now, inasmuch as the NSA belongs to the executive branch, I'm certainly criticizing it more than I'm criticizing Congress. But since it's the executive that's actually performing the abuses, I think that's only natural. Your argument seems to be that the administration is not at fault because Congress isn't stopping them from doing bad things. I find that bizarre.

              We seem to agree about the substantive issue here: there should be an adversarial system, and the adversary shouldn't work for the executive. To fix this, we need to call on the entire government to change the way the FISA Court works. The entire government--executive, legislative, and judicial--is at fault. I don't understand why you're so intent on limiting the blame to Congress and (I guess) the courts.

              And finally, just to set the record straight, it wasn't Richard who mentioned the conflict of interest in the "devil's advocate" being an administration official; it was me.

              "He, O men, is the wisest, who, like Socrates, knows that his wisdom is in truth worth nothing."--Socrates

              by TealTerror on Tue Jul 09, 2013 at 11:01:08 PM PDT

              [ Parent ]

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