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View Diary: What If You Pulled Back the Curtain and Found a Real Wizard? (181 comments)

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  •  the advisory opinion thing (1+ / 0-)
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    Tortmaster

    good catch, so when di dthe courts ever start issuing these?

    •  I like to think, patbahn, that ... (0+ / 0-)

      ... the true "litigants" in this type of proceeding are Privacy vs. Foreign Intelligence, that the issue is ripe for adjudication, and that there is certainly a controversy between the two. This looks more like a really, really, really-to-the-power-of-10 involved arrest or search warrant ex parte hearing, though, so I would guess it doesn't have to meet the "case or controversy" requirement of the Constitution.

      The fact that they do what looks like Advisory Opinions is very pleasing to me. In the regular case, a court is trying to determine if "what happened" was legal or constitutional. In these matters, the Government apparently can't do a thing until it is found to be legal and constitutional. Nice safeguard. Moreover, I didn't mention it in the diary or the comments so far, but it appears that these programs have regular (maybe annual?) re-certifications, in which the Government has to re-certify that the programs are still legal and constitutional.  

      Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

      by Tortmaster on Fri Aug 23, 2013 at 10:22:21 AM PDT

      [ Parent ]

      •  why not (1+ / 0-)
        Recommended by:
        Tortmaster

        just let these FISA warrants be like an ex-parte warrant
        hearing,  but the warrant gets to be attached
        to any criminal case which derived information
        from a FISA warrant (Just like a regular wiretap order)
        or the warrants become discoverable in various
        privacy/FOIA lawsuits.

        what troubles me is the FISA opinions are now
        advisory, and they are classified by ODNI.
        By what right does the ODNI silence the court?

        •  We could go ... (0+ / 0-)

          ... back to the old way of doing things, but that has some major complications involved as well, patbahn. Off the top of my head, there is the fact that more people are then "in the loop," and they might spill the beans about national secrets. Also, in the old system, prosecutors would go to the federal judge most likely to sign the warrant, and that could become more of a rubber-stamp. I don't like how the FISC judges are appointed now, and think they should be appointed evenly by the Minority and Majority Senate Leaders, but the old system could be an even bigger concern. Finally, there is the complexity involved. How long would it take to get your average Federal Judge up to speed on these systems, the detailed safeguards, etc.? I don't know the answer to that question.

          As for the opinions being advisory, I think that's good news. I want the Court looking at the Government's actions before they happen. The other way is to have the Government do it's business and then have the Court decide if it was legal after the fact. As for the opinions being classified, I can see where some need to be redacted heavily, but maybe not entirely classified "Top Secret." The reason for redaction is to avoid spilling the beans to the enemy. If they know the complete parameters of the U.S. search capabilities, they'll shortly find a way to defeat them.

          Rand Paul is to civil liberties as the Disney Channel is to subtle and nuanced acting.

          by Tortmaster on Fri Aug 23, 2013 at 01:13:46 PM PDT

          [ Parent ]

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