Skip to main content

View Diary: Dick Durbin: Secret FISA court 'fixed,' 'loaded' (206 comments)

Comment Preferences

  •  Wow. Yet Schiff-Rokita bill sounds so reasonable (4+ / 0-)

    in their op-ed at Guardian --

    The op-ed (iirc, after reading a few moments ago) didn't say anything about the Privacy & Civil Liberties Board.  But now that you mention it, I remember the Board as playing that part in suggestions for other sources.

    Would you happen to have a link to how the Board plays into the Schiff-Rokita Bill?  (Not dis-believing you; just want to read.)

    Here's the link to the Bill from the Guardian article --

    (I feel like I might be mixing apples & oranges here -- combining/mixing to aspect of a related story.  If so, my apologies; chalk it up to information overload.)

      •  Two FISC 'fixes' from Schiff - not so good, imo (4+ / 0-)

        Thanks to inclusiveheart and midwesterner for links.  Schiff has two proposals, one in Guardian joint op-ed with Rokita, one in WaPo and HuffPo.

        Guardian op-ed

        . . .  we have introduced bipartisan legislation in both houses of Congress called the Ending Secret Law Act, along with Senators Jeff Merkley (Democrat from Oregon) and Mike Lee (Utah Republican). Our bill would require public disclosure of FISC opinions that contain significant interpretations or constructions of the Foreign Intelligence Surveillance Act statute.  [...]

        Under the Ending Secret Law Act, the attorney general would be required to release opinions by the FISC that contain significant interpretations of the law in an unclassified format. If the attorney general determines a full FISC opinion cannot be declassified due to national security concerns, they must order a declassified summary produced. It also requires the DOJ to report on the number of opinions that will remain classified, giving citizens insight into how often the programs are used.

        WaPo/HuffPo --

         . . . one of the worst problems with the programs: The fact that the Foreign Intelligence Surveillance Court only hears from the government when deciding whether to authorize surveillance.

        Schiff’s proposal will require the Privacy and Civil Liberties Board — an agency within the Executive Branch that is supposed to monitor the balance between anti-terror policies and civil liberties — to create a pool of attorneys with experience in Fourth Amendment or national security law to argue the side of the public when the government requests a surveillance warrant. Under the proposal, the FISA court would be required to appoint a lawyer to act as a kind of “public advocate” for cases that would have broad constitutional implications.

        “What we have in mind is to use the Privacy and Civil Liberties board to generate a pool of attorneys, in consultation with the Justice Department, that will be cleared and can provide a contrary view in significant FISA court cases,” Schiff told me today. “The court will have the benefit of hearing contrary views and contrary case law.”

        I have some problems with both of these proposals as described.  At first glance, I am concerned about:  (1) All FSIC functions remain under Executive Branch control, no Congressional or non-Exec Judicial oversight, in either plan; (2) the terms 'significant' cases with 'broad constitutional implications' look like perfect places to hide contained NSA over-reach -- ie, if Verizon-type broad orders are grandfathered or formally legalized, such order would not be made public and would not receive 'adversarial' treatment.

        Historically, DOJ & Atty General have been the source of the (highly questionable) legal theories that have granted the Executive Branch extraordinary 'war powers' over domestic surveillance.  Schiff's proposals, as reported, appear to maintain unchallenged control over domestic surveillance, and over the secrecy surrounding it, in the Executive Branch.

        Some history of the DOJ's role in creating the theoretical underpinnings of the current NSA practices can be found here --

        -- and in its links.  And yes, there is a memo/white paper that says, in effect, 'The Fourth Amendment no longer applies' -- by John Yoo.

        •  One of the things that you are over looking (5+ / 0-)

          is the fact that the FISA Court Judges are already effectively "captured" not just by the Executive Branch, but specifically by the Bush Administration's Executive Branch in that they are selected and appointed by Chief Justice John Roberts.

          Wrap your head around that one.  One man with no oversight selects these Judges and they are lifers.  

          In the modern colloquial, Madison's comments on "tyranny" quoted above would effectively boil down to "Been there, done that".  Just because we vote for these Presidents doesn't mean that we are not following the template of a Monarchical or Totalitarian government - that notion shows just how very lost we are as a country in understanding our democracy as it was intended to work - we think that voting is the only distinction between Monarchies and Dictatorships, but that's entirely wrong.  

          Saddam Hussein held elections - and surprise!, he always won.

          Elections are not an absolute safeguard to a democratic system - they are a mere component of a democratic system of many, many checks and balances and of a system which is designed to be adversarial.  

          If voting was all a democracy really is, our Constitution would be one line long and it would have said, "Everyone who is a white male gets to vote."  {The End}

          The real

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site