Updated:Through a Glass Darkly
When I first posted the ACLU press release on Friday morning many of the posters suggested that I should do analysis of what I thought the FISC would do and I began researching FISA and the court with all of the usual constitutional law scholars and legal experts... Glenn Greenwald, John Dean, David Cole, and Jonathan Turley.
As I went all over the web reading and reviewing I found that I could find plenty of opinions about FISA court rulings... but practically nothing about the court itself. At the time I joked earlier about FISC being inside the "cone of silence" but it is and it is not a normal court.
Take for example the reference by Constitutional Law Scholar Jonathan Turley on Bill Moyers:
JONATHAN TURLEY: FISA is designed to circumvent the Fourth Amendment. It's designed to allow searches to occur with less than probable cause. Now since probable cause isn't a very high standard, it's a standard that's easily met, it's a little bit chilling to think that you need a court to make sure you can operate below that standard.
But the interesting thing about the FISA Court is that it could not be used for law enforcement. It was solely for foreign intelligence gathering. And the idea was that even though these searches would violate the Fourth Amendment, they're not being used against citizens for the purpose of prosecution. Well, that firewall is what just fell after 9/11.
Since that time I have found some information on the court Prepared by Lee Tien, Electronic Frontier Foundation Senior Counsel. It’s a bit dated, but does answer many questions about FISA and the court which was created as a result of the Church Commission:
§ 1803. Designation of judges(FISC)
Here's the ACLU Press release:
In Unprecedented Order, FISA Court Requires Bush Administration to Respond to ACLU's Request That Secret Court Orders Be Released to the Public (8/17/2007)
Government Must Respond by August 31
FOR IMMEDIATE RELEASE
WASHINGTON - In an unprecedented order, the Foreign Intelligence Surveillance Court (FISC) has required the U.S. government to respond to a request it received last week by the American Civil Liberties Union for orders and legal papers discussing the scope of the government's authority to engage in the secret wiretapping of Americans. According to the FISC's order, the ACLU's request "warrants further briefing," and the government must respond to it by August 31. The court has said that any reply by the ACLU must be filed by September 14.
"Disclosure of these court orders and legal papers is essential to the ongoing debate about government surveillance," said Anthony D. Romero, Executive Director of the ACLU. "We desperately need greater transparency and public scrutiny.We're extremely encouraged by today's development because it means that, at long last, the government will be required to defend its contention that the orders should not be released."
The ACLU filed the request with the FISC following Congress' recent passage of the so-called "Protect America Act," a law that vastly expands the Bush administration's authority to conduct warrantless wiretapping of Americans' international phone calls and e-mails. In their aggressive push to justify passing this ill-advised legislation, the administration and members of Congress made repeated and veiled references to orders issued by the FISC earlier this year. The legislation is set to expire in six months unless it is renewed.
"These court orders relate to the circumstances in which the government should be permitted to use its profoundly intrusive surveillance powers to intercept the communications of U.S. citizens and residents," said Jameel Jaffer, Director of the ACLU's National Security Project. "The debate about this issue should not take place in a vacuum.It's imperative that the public have access to basic information about what the administration has proposed and what the intelligence court has authorized."
I’d like to say that quite clearly that the majority of the eleven Federal Judges who sit on the FISA court agree with Mr. Jaffer when he said, "The debate about this issue should not take place in a vacuum. It's imperative that the public have access to basic information about what the administration has proposed and what the intelligence court has authorized."
I’d like to say that... but I’m not sure if there were eleven justices or simply the three justices who are by US Code § 1803 mandated "to reside within 20 miles of the District of Columbia who shall constitute a court" who were responsible for that decision. I’m also beginning to understand why constitutional law scholars like Jonathan Turley have such contempt for "secret courts" in the first place.
So I suppose we will never know how many justices were involved in that ruling or who they were but they definitely want this debate to happen out in the open and they want it to happen right now!
It is impossible to say how the Bush administration will respond to this order, except to say they will do everything in their power to prevent any information on their spying program from getting to the public. Should they fail in their attempts surpress this information an excellent place to begin the public debate is with the analysis by John Dean:
The So-Called Protect America Act: Why Its Sweeping Amendments to the Foreign Intelligence Surveillance Act Pose Not Only a Civil Liberties Threat, But a Greater Danger As Well
By JOHN W. DEAN
On her Democracy NOW daily program, Amy Goodman's (streaming video) interviewed Salon.com's law blogger, Glenn Greenwald, and the president of the National Lawyers Guild, Marjorie Cohn, about the PAA. The interview nicely sets forth what happened and its broad implications. Simply stated, Bush threatened to make a political issue of any effort by Congressional Democrats to protect the civil liberties of American. Bush surely succeeded beyond his most fervent hope in his intimidation of sixteen Democratic members in the Senate and forty-one Democratic members in the House, earning these members a place on "the roll of shame" in the blogosphere.
A Threat Greater Than That to Civil Liberties: Executive Aggrandizement
The Washington Post, the New York Times, and politically-diverse organizations ranging from the John Birch Society and the Cato Institute to the American Civil Liberties Union all agree that the PAA is a serious mistake, and threat to the civil liberties of Americans. They point out that the law ignores the Fourth Amendment while, at the same time, hiding its actual operations in national security secrecy. Indeed, Congress was not even certain about the full extent of what it has authorized because President Bush and Vice-President Cheney refused to reveal it.
There is, however, a threat in this new law even greater than its robbing Americans of their communications privacy, which commentators and critics have virtually ignored. This law is another bold and blatant move by Bush to enhance the powers of the Executive branch at the expense of its constitutional co-equals.
Congress was willing to give Bush the amendments to FISA that would make this law effective under current technology. The 1978 law did not account for the fact that modern digital communications between people outside the United States often is routed through the United States, yet the FISA Court said surveillance of such routed communications required a warrant. Nevertheless, Bush rejected the legislation proposed by the Democrats because it also contained checks on the use of surveillance powers.
This, of course, is consistent with Bush and Cheney's general drive to weaken or eliminate all checks and balances constraining the Executive. This drive was evidenced by countless laws enacted by the Republican-controlled Congresses during the first six years of the Administration, and in countless signing statements added by the President interpreting away any constraints on the Executive. Thus, when even the GOP Congresses required presidential compliance and reporting, they were thwarted.
The most stunning aspect of the Democrats' capitulation is their abandoning of their institutional responsibility to hold the president accountable. The Protect America Act utterly fails to maintain any real check on the president's power to undertake electronic surveillance of literally millions of Americans. This is an invitation to abuse, especially for a president like the current incumbent.
Fixing the Dangerously Deficient Albeit Quickly Sunsetting Protect America Act And Ignoring the White House's Requests For Even More Power
Even though the White House got everything it demanded from Congress, it is requesting even more. When signing the Protect America Act, Bush said, "When Congress returns in September, the Intelligence Committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director of National Intelligence Mike McConnell, including the important issues of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001."
Bush also wants legislative immunity for the American companies, and government officials (including himself), to protect them from criminal prosecution for violating the criminal provision of FISA. As readers will recall, before Congress caved and gave Bush power to conduct this surveillance, he - and telecommunication companies simply opted to do so illegally. Now, Bush will claim, with some justification, that because Congress has now made legal actions that were previously illegal, it should retroactively clear up this nasty problem facing all those who broke the law at his command.
If the Democrats fail to stand up to the bullying of this weak president, and ignore his demands for more unaccountability, they might as well start looking for another line of work. Not only are their fellow rank and file Democrats going to turn on them in 2008, but the overwhelming numbers of independents who assisted them in regaining power are going to desert them in droves.