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September 03, 2007


I blogged up this post @ Electronic Frontier Foundation - Administration Leaks Confirm AT&T and Verizon's Role in Warrantless Wiretapping.
Excerpt: 'The information is only "secret" when its discussion would be helpful to the courts in reviewing the legality of the surveillance and thereby it is kept "secret" to prevent the millions of ordinary Americans who have been illegally surveilled from establishing what has been going on and stopping it.

On the other hand, when the Adminstration believes that the information helps its efforts to strong-arm Congress into more concessions and a retroactive 'get-out-of-jail-free' card for the telecommunications carriers, they freely discuss it with the press, albeit "anonymously."'

I blogged up this post @ Electronic Frontier Foundation - Administration Leaks Confirm AT&T and Verizon's Role in Warrantless Wiretapping.
Excerpt: 'The information is only "secret" when its discussion would be helpful to the courts in reviewing the legality of the surveillance and thereby it is kept "secret" to prevent the millions of ordinary Americans who have been illegally surveilled from establishing what has been going on and stopping it.

On the other hand, when the Adminstration believes that the information helps its efforts to strong-arm Congress into more concessions and a retroactive 'get-out-of-jail-free' card for the telecommunications carriers, they freely discuss it with the press, albeit "anonymously."'

Apologies. Don't now why it double posted.

There's only so far you can go into the card game 'throwing off' and dissembling before everyone realizes you're 'shooting the moon.'

The rest of the World appears to have strongly suspected, if not outright deduced, that Bush intends to flatten Iran's Nuclear facilities and, if he possibly can, cripple Iran's economy with air strikes.

And still, the heartland of America slumbers while watching American Idol.

The fairy tale, however, has to have an end, and, imvho, September is it. If the military emerges from the shadows and stands with Bush during the next two weeks to paint a 'We're winning in Iraq' picture, then he's probably got enough trump cards in his hand to run the table and make book on Iran, too.

Boehner's been a sheepdog for Bush all along - herding the wayward Goopers into the Oval Office for spankings, as neccessary. The best reason I can think of for the slinging-around of classified information like it's a talking point by Cheney, Libby, Rove, Hadley, Rice, Boehner, etc is because...

...dear Leader does it.

And, what we know for certain is: If Bush does it, then no Loyalist will be punished for doing it - especially if they heard from Bush to begin with.

Severing out all the need for secrecy/right to know, etc. appeals to emotion and, in some instances, to logic, the legal issue is one that I think is pretty clear but is getting short shrift.

An order denying makes law. We have different ways of making law and legislative is certainly one, but case law is equally "law" albeit generated by a different path. So an order determining limits on the Executive Branch's assertion of power makes law.

You cannot have "secret laws" in a democracy.

So while there may be need for redacts, the law of the case can not, unless we are willing to see complete institutional collapse, be made secret.

The standing issue will be the interesting issue and it would CERTAINLY be helpful if members of Congress were to join in to indicate that they don't know how to draft their legislation if the courts keep secret how that legislation is being interpreted and why.

No time for more.

I don't see a "standing" argument, per se. The ACLU motion comes from outside a case before the FISC. For a parallel example, the CADC released redacted portions of its opinion and the affidavits of Fitzgerald in the Miller/Cooper case, on a motion by the Dow Jones and the AP - neither of which had "standing" in the government vs. Miller case.

The government's argument headings are:

I. There is No Legal Basis for the ACLU's Motion.
A. The FISA Does Not Provide This Court with Jurisdiction to Provide the Relief the ACLU Seeks.
B. The FOIA is the Only Appropriate Avenue for the ACLU's Request.
II. The Executive Branch Properly Classified the Requested Materials.
A. The Executive Branch Has Sole Authority to Classify Information and Courts Give the Utmost Deference to These Decisions
B. The Documents the ACLU Seeks Are Properly Classified.
III. The First Amendment Does Not Compel Release of This Classified Information.
A. The First Amendment Public Right of Access is Limited to Criminal Proceedings.
B. Both Experience and Logic Show That the First Amendment Does Not Compel Access to This Information.
C. The Government Has a Compelling Interest in Protecting This Classified Information.

When the ACLU filed its motion, my guess as to the government's defense was that it would argue "jurisdiction" and then "classification," where the classification authority is the executive, not the court.

Even if FISC wanted to publish its opinions, its jurisdictional grant has it deferring to the executive for declassification.

I haven't read through any of it cboldt - but in essence all of III is, disitlled, basically a standing argument. Just from the headings it would seem to be that they are saying there is no criminal suspect who can demonstrate damage and the first amendment doesn't seperately convey the ability (standing) to seek the information in light of a showing - as with a criminal defendant - of direct damage. But I'd have to read it and that may be wrong.

II should be a laugher, but it is coming up everywhere. It's like saying that the Executive Branch can come in an stamp Congressional legislative materials classified when Congress has not. The government is trifurcated and each branch has both its own rules/abilties to to keep information secret. You go to court, the court decides what is secret. You have Congressional hearings, Congress decides what is secret. And yet all three branches are bound by the constraints of the powers they have and have not been granted and by the Constitution as to what they are required to make available to the nation that they SERVE (not rule, serve).

But the argument is coming up in all kinds of contexts that the Exec should be able to classify all aspects of the law and of government and decide in their "Loyal Bushie Gardenhouses" whether or not, or when, to let people know they've decided to rule rather than serve.

Passing by the legal nitty gritty, what the government's argument leads to is a situation where privacy laws have no legitimate purpose -- unless one takes "fooling the public" to be a legitimate purpose of statute.

The ACLU isn't as interested in the details of the order (which is what the government seems to be arguing over) as it is the legal rationales. The argument is that the legal rationales themselves should remain classified.

The ACLU Reply should emphasize that difference. Without disclosing what the activity was, the FISC can say they found it "in" or "out" of "electronic surveillance" as defined in 1801(f), for example.

I have the government's argument in text form at this link.

The word "standing" appears exactly twice in the argument, in these phrases that describe the ACLU's motion as being "free-standing":

Congress, in its limited grant of authority to the Court, has not empowered the Court to consider free-standing motions filed by non-parties, such as the ACLU. ...

Because Congress has not authorized this Court to consider free-standing motions filed by non-parties like the request at issue here, the ACLU's motion should be dismissed.

FISC is a court of specialized jurisdiction, unlike many Federal Courts which have either general jurisdiction, or subject-matter jurisdiction (e.g., bankruptcy).

The difference between "standing" and "jurisdiction" is a legal nit to most people anyway, but the government isn't arguing "ACLU lacks standing," not even in Part III.


Standing may not be the correct term, but this is more than a jurisdictional argument. The govt is arguing, first, that an aggrieved person is the only one who gets FISC rulings, but only if evidence collected under FISA is used against them in court. Since the ACLU isn't arguing they are such a person, they can't ask the court for the info. And the govt references the Appeal Court ruling against the ACLU as background.

The govt's argument about jurisdiction is a different one, in that it's saying only a district court can determine whether or not somethign falls under the court's ability to declassify. THis argument dismisses the ACLU argument that FISC does have the power and largely dismisses the FISC's past ability to publish opinions.

Then there is the separate argument about whether the First Amendment covers this--the argument Mary makes so well. But as Mary points out, that's even a weaker argument on the part of the govt, because at least between Jan 10 and August 4, these rulings did make law.

My point in the post is that the govt doesn't really engaged arguments two or three fully, probably because they're going to get into a very obvious separation of power argument. Even the EO they quote over and over again doesn't govern the FISC.

cboldt - I went to your site and read the government's pleading shortly after you posted the link. I started to post some analysis, but got frustrated because I was responding basically to circular drivel. The response is essentially 20 pages of puffery that boils down to A) You have no right to ask for this; and B) Even if you did, you can't have it because it's classified. As regards the instant issue, and I understand the distinction between standing and jurisdiction, they are effectively both the same rose with a different name. For not being a lawyer, EW has stated far better than I have to date my take on this issue. Without retyping what she did immediately above, this is exactly what I meant by the inherent ministerial rights, duties and abilities of a court in relation to it's own documents and opinions. the government would have you believe that FISC is merely an adjunct to the DOJ; but that is most definitely not the case. So, call it what you, or they, will I see no legitimate basis for denying the ACLU the right to make this application. Argument "A" has thus been dispatched (damn, if only it were really that easy). That still leaves Argument "B"; which in fairness to the government, I have some sympathy for. Maybe. The problem is that we never know why this is, and has to remain, classified; which as EW notes serves to preclude the public from knowing what law is being applied to them; which is fundamentally inapposit to our form of governance. If the law, rules and regulations behind the determination on the facts cannot be seperated from the facts sufficiently to allow the public to understand what is being done in their name; that is a situation that is directly contrary to what we are and is Constitutionally impermissible. EW is right; the government has some 'splaining to do.

Oops, I believe I conflated the EW take and the Mary take somewhat under "B" above. Sorry about that. But they are, both individually and as conflated, correct. We are being treated to yet another fucking Administration shell game; except this time they are hiding the pea under shells belonging to other seperate and distinct branches and saying they have the unmitigated right to do so. They do not.

That's why I stopped analyzing the government's retarded bullshit, bmaz.

If the government is in court and the topic is secrecy, they're shitting you. The end.

Sorry for the OT post, but I spend my days trying to catch up. For a Labor Day treat, I took my copy of "The Wrong Stuff" out of my to-be-read pile and dove in.
I was struck with a reference to the first MZM contract, with the White House, and wondered -- is MZM the company that lost all the WH emails, the company name that the WH won't divulge to Waxman's committee? It seems too pat -- and probably something somebody has already debunked -- but it caused me to wonder.

Just to make sure I understand, if anyone has time to respond:

Mary seems to be saying that traditionally, each separate branch (Exec, Congress, Judiciary) determined what was 'classified' within their realm. But now, the Exec claims overall authority to 'classify' -- or 'declassify' -- in any branch of gov't, (under the Unitary Exec claim). Did I synthesize accurately?

Bmaz seems to say that the Exec is 'reaching outside its scope' by reaching outside the Exec and intervening on a decision of the Judiciary branch by claiming that FISA is subordinate to DoJ, which is subordinate to WH/Exec. Whereas, in fact, FISA lies within the Judiciary branch, and the WH has no authority to make its bogus claim.

Did I follow the relationships correctly? Thx in advance for any assistance.


The EO the govt references in their filing pertains only to Executive Branch agencies--it is designed to control the classification of things like DOD and CIA, which makes sense if you think about it. So, without arguing why FISC would be subject to an EO referring to Executive Branch agencies, they're using that EO to govern the classification of the rulings from the FISC.

There has not traditionally been the need to classify Congressional stuff (which is mostly immune from FOIA anyway) or the Courts (which will seal stuff if the govt asks and provides a reason). But to assert that an EO covering the Executive branch all of a sudden covers the Courts is to rewrite the Constitution.

The govt should--and probably will--contest the FISC's ruling on sealing the order to the FISC Review court and SCOTUS. But BushCo can't--or shouldn't be allowed too--just unilaterally declare something the Court has written to be classified.

What happens if the "administration" simply does declare a court ruling to be classified?

Who reviews classification protocols? ISOO. And who's responsible for making sure ISOO is doing it's job? The Attorney General. And what famously unitary branch does the Attorney General serve in? The executive.

Now go home.

RoTL - Cut down to the basic root, yeah I think thats about it. In fairness, both to the government and the specific facts that appear to be in play here, it isn't, and can't be, that simple. Certain things are properly classified by the government. Even in court cases in front of the judiciary. There are appropriate situations where courts place things under seal, and only allow redacted copies of documents to be made public, etc. What this Administration repeatedly tries to do however, is black out (classify) not just necessary facts, but entire areas of the law that is being applied to citizens of the United States, in their name, by their government.

I see jurisdiction as a general power that inheres to a court. Federal District courts don't hear bankruptcy cases. Local criminal courts don't hear probate cases, etc.

The jurisdiction of the FISC is to take applications for court orders for foreign intelligence surveillance. The only powers it has relate to issuing orders -- I am sure it also has contempt powers, etc., but it's power to grant remedies is limited by its jurisdictional grant.

Standing, OTOH, is the notion of whether or not a specific party before the court has any business -in the case at hand-, given a subject where the court has jurisdiction.

The ACLU lacks standing to apply for a court order for foreign intelligence surveillance, to use the jurisdiction of the FISC as a specific example. The ACLU would be in the right court to make that application, but it isn't the right party to do so. I think the government accurately described the third party mechanisms that also play in FISA, those being where a telco (or other party holding information ostensibly in confidence) refuses to comply with a surveillance order.

But even given absence of standing and/or absence of jurisdiction, we see amicus and other parties appearing before courts, and I think the Dow Jones/AP example is a good one to see a total "outsider" coming in and moving for publication of material that it asserts should be public. The CADC ruled on its own, on matters involving grand jury secrecy of a case that it had heard and ruled on. The CADC granted part of Dow Jones' request. And in the FISA-supervised surveillance case noted for the government-admitted FISC rejection of a "TSP-like" application, the FISC agreed to hear and rule on the ACLU motion.

But classification has a life all its own, involving powers outside of the Court's power. See CIPA, for example. I don't know the exact procedure that resulted in declassification of the FISC "wall" ruling, and subsequent FISCR reversal. Somebody at the ACLU knows, because it submitted a brief in opposition to the government.

Jeez cboldt, you saying the same thing we are, just making it sound all fancy and what not.....


You and I are in agreement on the difference bet jurisdiction and standing. In my reading, the govt is arguing that since FISC's jurisdiction is so limited, the Dow/AP motion is not an adequate parallel here. They may be right. But to get there, they are pretty much dismissing, without dealing with properly, the fine print that ACLU found in FISA. That will likely be ruled on by higher courts.

Note, though, that CIPA is not an exact parallel either. The court only rules whether the govt has provided adequate substitutions for the defendant to mount an adequate defense. The court can rule those substitutions are not adequate, but that's not the same as declassifying an Exec branch document, since the Exec is then in the position of havign to decide to either drop the case or do better substitutions.

But with CIPA, the govt is arguing those substitutions for Executive Branch information. That's not the case here, which is why I think the ACLU's motion is so clever.

Courts have the power to keep certain things private, but I don't thing the term "classified" applies to those secrets.

Likewise Congressional activities, political strategizing, etc. may be done (probably are done) largely "in private," and intended to stay secret forever. That's not "classified" either, even though it's secret.

Congress does receive "classified" information in the form of reports and briefings, and to some extent, creates "classified" material such as black-box expenditures, typically for military hardware and spying activities.

With regard to the TSP, it is within the executive snooper's power to avoid submission to the FISC altogether -- just snoop. What's the best way to keep a classified activity "secret" and "classified?" Don't tell anybody, and don't ask permission. The entire FISC apparatus is designed to maintain classified status -- otherwise the executive would be nuts to submit even legitimate (not even close to a fourth amendment violation) to the FISC.

I mention CIPA as a different framework within which to view the classification power, not that CIPA applies directly to this case.

I don't see any "parallel" whatsoever. But under CIPA, a Court does not decide to declassify ... it decides what to do in the wake of an executive decision to NOT declassify.

The best cases for getting a handle on the current ACLU motion are the state secrets cases. What subject material is properly classified, and what is not? Courts have a role here too.

This case reminds me a bit of Gilmore's suit re: TSA procedures.

Again, i see no fundamental difference in what you are saying; I know its hard to admit, but I think you are agreeing with the DFHs. As to your last paragraph, now that the "Protect Bush, er i mean America Act" has been passed, that is kind of inoperative isn't it?

Here's what FISA says about rejected applications and other paperwork:

(a) Court to hear applications and grant orders; record of denial; transmittal to court of review
The Chief Justice of the United States shall publicly designate 11 district court judges from seven of the United States judicial circuits of whom no fewer than 3 shall reside within 20 miles of the District of Columbia who shall constitute a court which shall have jurisdiction to hear applications for and grant orders approving electronic surveillance anywhere within the United States under the procedures set forth in this chapter, except that no judge designated under this subsection shall hear the same application for electronic surveillance under this chapter which has been denied previously by another judge designated under this subsection. If any judge so designated denies an application for an order authorizing electronic surveillance under this chapter, such judge shall provide immediately for the record a written statement of each reason of his decision and, on motion of the United States, the record shall be transmitted, under seal, to the court of review established in subsection (b) of this section.
(b) Court of review; record, transmittal to Supreme Court
The Chief Justice shall publicly designate three judges, one of whom shall be publicly designated as the presiding judge, from the United States district courts or courts of appeals who together shall comprise a court of review which shall have jurisdiction to review the denial of any application made under this chapter. If such court determines that the application was properly denied, the court shall immediately provide for the record a written statement of each reason for its decision and, on petition of the United States for a writ of certiorari, the record shall be transmitted under seal to the Supreme Court, which shall have jurisdiction to review such decision.
(c) Expeditious conduct of proceedings; security measures for maintenance of records
Proceedings under this chapter shall be conducted as expeditiously as possible. The record of proceedings under this chapter, including applications made and orders granted, shall be maintained under security measures established by the Chief Justice in consultation with the Attorney General and the Director of National Intelligence.

So in no case can AG and DNI decide, on their own, how these records are to be treated--John Roberts gets a whack, too. But rejected applications are only subject to the normal security standards, unless the govt asks for an appeal (which they appear not to have in this case, or certainly not an appeal to SCOTUS).


But the state secrets are again exec branch information. The whole point of this ACLU motion--the reason it's so clever--is it's asking for stuff that, at least nominally, is under the control of the Judicial branch.

EW - You are waging a war you have already won. This argument boils down to is the FISC a court at all, or is it an adjunct of the DOJ and DNI? The only way to obviate what you are arguing is to hold the latter.

Yeah, I was just curious whether FISA said anything on it, and it doesn't.

This should be an interesting ruling, bc it provdies a way around all the other games BUshCo has tried, and a quick review process, perhaps...

-- Again, i see no fundamental difference in what you are saying --

It's mostly been nitpicking and/or nuance, where posters assign the wrong label to the gist of an argument; or to plant the seed of recognition that the FISC is "radically different" as courts go. Congress ... Congress created a secret court when it created FISC and FISCR. It made a "safe place" for the executive to take surveillance applications for foreign intelligence purposes. There is a fundamental tension there that is not at play in any other Congressionally-created court; and it is that specific tension that is at play in the current proceedings.

My guess is that FISC is entertaining this motion as a means for the public to vent some steam. The action isn't going anywhere, and Congress is eventually going to take away more privacy while claiming to be protecting it. Meanwhile, can't have the subjects getting too antsy.


See, I read the FISC request for briefing on this differently. BushCo (and Congress) basically gutted not just the FISC, but the entire concept of judicial review, with the FISA amendment. Judges don't like that, and at least two of the 11 FISC judges are unhappy with what BushCo tried to pull. Plus the ones who may have been a source for Lichtblau and Risen. ALl of which suggests there may be the desire to release this, so that America actually gets back its separation of power.

-- This argument boils down to is the FISC a court at all, or is it an adjunct of the DOJ and DNI?

Of course FISC is not an adjunct of DOJ/NSA. It's rejected various government applications and motions.

But I don't see how that helps or hinders advancement of ACLU's motion, which amounts to a motion to declassify.

I have read that the various FISC decisions that made it into the public eye had been declassified. If true, that implies the executive agreed with making them public.

In the current action, the government is trying to turn a request for legal rationales into a request for classified information. I'd pull out the government's white paper on the TSP, etc., and advise the FISC that it is that sort of information that is being sought -- legal rationales with only general reference to surveillance activities.

Exactly. Although I would argue that there is a very good chance that the FISC, at least some of them including, significantly, Kollar-Kotelly, are none to happy with the way all this has been trending, and are trying to find subtle ways of placing some of the issues in the public square; as opposed to merely placating the public. Bushco will turn it on it's head and use it a a scream for more secrecy, just like you indicate.

"Of course FISC is not an adjunct of DOJ/NSA". That is, of course, what should be the case. However, when the only stated party that can ever approach the FISC (as the Administration seems to effectively claim with some support from the enabling statute), and any decision by the court can be declared classified, including the legal rationale (as is being argued by the Administration), by the Administration through the DOJ and DNI, what results is a black hole that is merely an effective function of the Administration through the DOJ and DNI.

Yes, it's a good venue for Lambert and Kollar-Kotelly to vent some steam too. I figure none of the judges are any too happy with being used as some sort of validation device for what the public may see as a gross violation of privacy. IOW, they are protecting the institution of an independent judiciary while heaving the ball out of their backyard.

I don't see the judges releasing anything before it's declassified, that's for sure.

Congress is the entity that is going to have to deal with the fallout. FISC is their creation.

I'd rather see it disbanded altogether, than have this abomination of "modernized invasion of privacy." The presence of a statute legitimizes wholesale snooping.

Well, here's hoping that they write a nice little 25 page expose for theirorder/decision on the matter. If they are so inclined, there will never be a better vehicle. I am somewhat surprised the Administration didn't attempt some interlocutory action to stop this is it's tracks instead of responding on the merits of the ACLU application. For what its worth, and i think I said this before, I have never found the whole FISA and CIPA process particularly Constitutional. The focus of my ire in that regard was violation of the confrontation clause on behalf of a client quite some time ago, but the whole process struck me as contra-constitutional in a number of generalized ways. That though has only grown stronger over the last several years.

Damn EW, you are getting VERY good at this. Somehow or another, your comment at 14:54 slipped in without me seeing it until now. As you can see from my 14:57, I completely agree; also the first two sentences of my 15:20. The backbone recently added to the FISC bench sure won't hurt in these efforts. We can only hope....

IANAL (duckng under the nearest down pillow for protection from the flame perhaps deservedly coming), but it seems to this observer that this is less to do with "the law" and its nuances, and more to do with the FISC letting off a little steam (as other commenters have already remarked).

From a strictly non-practicing civilian point of view, why is this any different than when a wiretap is turned down for, let's say the local drug lord, on normal legal grounds such as insufficient probable cause or for the regular hum-drum constitutional grounds?

Is it not true that we, the public, would never see a "record" of this denial?

Yes, it is true that such a denial might be revealed during some future criminal proceeding for that local drug lord, but that is far further down the primrose path than we are now with the FISC ruling.

So what am I missing? *g*

As I'm safely ensconced now under that down pillow, and even clutching a teddy-bear, fire away!

Flame On Mad Dogs! That is actually an interesting point. The reason nobody ever sees the warrant applications on standard criminal cases is that nobody ever goes to look for them. They are there if you know where to look; I have done it. Now that hings are so computerized, you can even go down to the Superior Court, and if you know the warrant clerk's name and location, and he likes you, he will do searches for you. And yes I know this, and no I am not telling anyone else. Heh heh. So the result is that if you really want to, you can see the law being handed down by the courts; the Administration here says you cannot find that out no matter what.

One more difference in this case, Mad Dog.

FISA has only ever turned down a handful of requests. Add in the fact that these applications were reputed to be programmatic requests, as distinct from individual requests, and these documents are not only two of the very few times FISA said no to an Administration, but they may have been "no's" that were more systematic than that warrant request for John Gotti.

bmaz, do you mean that the local drug lord could cruise down to the clerk of the court's office and find out that the Sheriff had an approved wiretap warrant out for him?

If you sense a bit of "raised eyebrows" here, the channeling is working. *g*

How could this be? Not from a legal perspective, but from a plain ol' "dumb stuff we do" perspective?

Mad Ogs - See. Raise your eyebrows, and I revert to my original misspelling of you handle! No. The warrants don't become public information until after they are "returned" in the case of a search warrant (legal term for report of what was discovered) or they expire in terms of surveillance warrants. there is usually a grace period after either one of those dates as well for the matters to be publicly filed (often ten days). If they are warrants obtained in relation to a grand jury, they may not expire until the term of the GJ is up. There is also a streamlined process for the particular law enforcement agency to request the court to seal any of this; but the decision is in the court;s discretion. Here, the law enforcement agency is saying they get to decide everything.

EW, regarding your last point, I sure wish our Congress-critters could somehow craft their laws with one constant caveat: Congress-critters shall always have standing with this legislation to bring suit in Court.

Particularly with any law to do with FISA stuff. It seems like an incredible oversight that because of its very nature of secrecy, it is unlikely that anyone would ever overcome the issue of "standing".

It was no oversight. Far from it. FISA was an intentional "workaround" of the 4th and 5th amendments so that they could be obviated without being abrogated.

bmaz, you can misspell my handle anytime, with my blessing. *g*

So a final set of questions on the "public" nature of wiretap warrants. Can anyone obtain this information? Or is it something that realistically only can be gotten because one "knows" somebody (i.e. the warrant clerk).

Can this information be obtained at all levels of government (local, state and federal)?

bmaz said: "It was no oversight. Far from it. FISA was an intentional "workaround" of the 4th and 5th amendments so that they could be obviated without being abrogated."

Jeesh! "Obviated without being abrogated." LOL! I remember reading about that in Catch-22.

And the bet was that Judge-folks would always protect the constitutional rights of "We the People".

I don't remember submitting my proxy vote in the matter, but it probably was in the fine print on that Publisher's Clearinghouse Sweepstakes entry I sent in back in the Seventies.

Theoretically anybody could do it. In practice, even most lawyers would have no idea how to do it. In general, warrants can be issued by any duly appointed magistrate from city up to federal. Certain types of warrants have further restrictions on which level of court issues them. It is extremely difficult if you don't have a contact or know what you are doing. For they are not captioned "In Re: warrant to spy on Mad Dogs" or anything like that. The captions are beyod vague; such as Inre; warrant application of dateX, or In re warrant application for certain wiretaps within the city of X and so on. They also usually check your ID because these offices are in secure locations within the courthouse without exception that I have seen. So that kind of shies a lot of criminals away I should think. The real value is that if a criminal case is filed, these applications are disclosed as part of discovery and you can review them; so people can see the evidence that was obtained against them. The FISA process does not contemplate this ability.

One difference between those "ordinary" (criminal investigation) warrants and FISA warrants is that the former are protected mostly by grand jury secrecy. And as bmaz notes, if the evidence from those searches is to be used at trial, the prosecutor has to produce the evidence to the defendant, and the defendant can argue whether or not the search was based on probable cause, and whether or not the search was reasonable.

In contrast, foreign intelligence surveillance represents classified information - the defendant doesn't get to see it directly, because it's classified -- not just secret as is grand jury, etc.

This distinction isn't/wasn't much of a deal as long as the foreign intelligence stuff isn't used for criminal prosecution; or when the cause for criminal suspicion comes from other than snooping in the first place. But what's been happening with greater frequency is the "no suspicion" foreign intelligence snoop is being bootstrapped into a finding of probable cause for suspicion of criminal activity (usually conspiracy or providing material support).

Catch 22 is a good metaphor. Animal Farm and 1984 work pretty well too.

In the criminal investigation, the fourth amendment (and some of its construction by SCOTUS) aims to have two independent branches involved before privacy is invaded ... no warrant (i.e., a court has to be involved) except on probable cause (no fishing expeditions). These "protections" (seriously eroded by now, and not just by FISA) produce a certain amount of circumspection on the part of the snooper, such that most warrants for criminal investigation are ALSO granted (just as most FISA applications mature into court orders).

See 50 USC 1806 for the procedure by which a defendant can attack evidence that is tangled with a FISA snoop. The barriers are mighty tall for a defendant to see the basis for probable cause -- if the defendant is even aware that there was a FISA snoop.

" if the defendant is even aware that there was a FISA snoop." And therein lies the rub, or at least a rub. There was little chance of a defendant ever realizing that he had been had from FISA use to start with; the Feds just pretended the case began a step or two later than it really did. But at least if the defense ever got an inkiling, there was some record at the FISC that theoretically correlated with the case. That is done and over with the PAA. The good folks that brought you 5 million plus mising emails sure as hell won't be able to find critical pieces of the snoop puzzle when called upon to do so. What indeed happened; will, effectively, have never happened. There is no longer anyone watching the watchers.

-- That is done and over with the PAA. --

Sure is. All of 1806 pretty much "disappears" when there is no 1805 order or 1804 application. The current administrative orders are very generalized, to the extent they are useless to express why a snoop was justified to an individual case.

It's funny, not in a "ha ha" way, that when the existence of the TSP was publicized in December 2005, I pretty quickly (as in within a couple days) started to wonder how the hell the information was going to be (or was being) used. The "prevent attacks" folks figure listening in is enough on its own, I guess. I wondered what sort of force and action would be applied, following the snoop. Listening, like talk, is cheap.

My "wonder what they do with this?" question didn't generate any interest. My concern was/is that the evidence might be tossed out of court --- what good is the snoop then? And if the snoop isn't going to be used in a court proceeding, well, what then? Make people disappear? Oh goodie.

Yeah, well, I agree; and thought the same thing, they don't collect for nothing. And they never intended to not use it in court; they just intended to "clean it up" before submission to the system. They always want their cake and to eat it like gluttons too. One of my real questions is why the big push to codify all this. There have always been people disappeared if they had to, there has always been surreptitious illegal snooping when they had to, there has always been torture when they had to. While we may not like to admit it, it has always gone on. But the public face of the country has always been maintained above that; as it damn well should be. This administration has gone way out of it's way to ingrain this into, indeed almost make it the face of, our ethos as a nation. This I have never understood.

-- This administration has gone way out of it's way to ingrain this into, indeed almost make it the face of, our ethos as a nation. This I have never understood. --

I figure it's just part of the natural progression from self-government to dictatorship. It's serendipitous that this event is happening under a Republican -- Democrats are just as elitist and controlling. The people aren't capable of limited self-government any more. A substantial number of them have figured out how to vote largess for themselves, from the public treasury -- and I think a majority of the voters also buy the swill that the government can, given enough sacrifice by the populace, prevent attacks.

At any rate, in this natural progression, at some point it is necessary to increase the amount of fear that people have about their government, and to instill a sense that change is beyond the voters' control. Legitimizing secret action is helpful in those regards.

cboldt - while the term "standing" isn't used, that is the item III argument.

Item I is the jurisdictional argument, which is based upon the limited statutory grant of jurisdiction to the FISA court. I can go into that more later, but as an old bankruptucy lawyer once upon a time - including during that period of time when they were having the arguments as to whether a limited jdtn ct like a BR had contempt powers, I'm pretty familiar with the jurisdiction argument.

As a matter of separation of powers, IMO once a court is granted the power to review an issue and "make law" on that issue via the cases that come before the court, then there is no ability in the Executive or Legislative branch to decide what is sealed or not sealed by the court. That is not a matter of jurisdiction - jurisdiction was the power to hear and rule. It is a matter of separation of powers - what the court does with its rulings as to sealing or not sealing is for the court, not the Congress or the Executive and for that matter, neither hte Congress, Executive or Judiciary is, imo, able to make "secret law" which is what happens when actions are determined to violate law and yet the determinations remain secret.

Item II is the "even if you have jurisdiction, you need to defer to the Executive because ONLY the Executive can decide what to make classified bc of national security reasons" argument. So if the court decides it has jurisdiction, ORDINARILY, to decide whether or not its rulings should be released, they are trying to argue that in THIS CASE the national security interests are such that the judicial branch must bow to the Exec branch's determinations. Which is crap but keeps coming up time and time again. Now, the "it's crap" doesn't mean that the COURT can't make the determination on its own to seal factual matters, but once you are in court and the Exec is disclosing to the court, then it's like the Exec disclosing to a member of Congress who chooses to take to the floor of the legislature and spiel out the info. On the factual end, there is an argument for gov, but on the holdings and rulings I think not only do they lose on the issue of the Judiciary not being bound to have to bow to the Exec on something like a court's opinion and ruling, but I think we also have the fundamental Constitutional issue of a court not being able to make 'secret law.'

The final argument is a standing argument, even though the word standing is not specifically used. The argument is about whether or not there is a First Amendment right to get the information and that is a standing argument - gov argues a "'historical tradition of at least some duration is obviously necessary"' before a court may recognize a right "of public entree to particular proceedings or information..."

The right of public entree is the standing issue. Gov is saying that even if the court decides it has jurisdiction and decides that it [the court] has power to decide for itself what it will release vis a vis its rulings, that the court must be petitioned by the appropriate party before it can take such action. That party must be a party with a right to the information - standing to get the information. All the First Amendment cases cited and issues are about the right to access and that is pretty fundamentally interwoven as a standing argument in all those cases.

So gov says:
1. Court, Congress didn't give you jurisdiction to release your rulings.[sep of powers issue]

2. If you [fisc]think you have that jurisdiction, the Executive is saying you can't release your rulings because of national security issues and because the Executive is paramount to the other branches in national security and can intermeddle in the Judiciary's rulings and in what becomes law and can supress law that it finds inconvenient. [sep of power and yeah - I kind of embellished that starting with the intermeddle part]

3. If you think you have jurisdiction FISC and you think the Exec isn't God and doesn't have the power to wipe the tablets clean, then still under ordinary judicial principles (and not the separation principles) you should determine that someone needs to have a cognizable interest (standing) to petition you to act and the generically stated First Amendment rights of the plaintiffs are not sufficient an interest - particularly since there was no criminal case and so the criminal case/first amendment press rights do not apply.

All of which, imo, completely ignores the fact that you can't make secret law in a democracy or under our common law traditions. In particular, if the ruling was on something Gov was or has been doing as opposed to something it wanted to do - then you do have a criminal issue.

Anyway - too long to get into I guess, but I still say that all III is basically standing and standard judicial review argument. II is the bizarre notion that keeps coming up that all the Exec has to say is national security and all must cower before it on every item, including the ability to have secret laws (a concept which loyal Bushies have actually argued in the pilot case). I is the jurisdiction argument you are framing. I don't buy that as a cloak on the court's rulings though. It is inconsistent with creating a court and giving it the power to review and rule - to then say those rulings are not case law just as in any other situation and if they are, then it is for the court and not the legislature nor the executive to determine how their rulings are handled, but in larger part it is a Constitutional matter in a Constitutional democracy that no part of government is entitled, for due process if not other reasons, to generate secret law.

IMO at least and that is worth the price paid. ;)

-- I still say that all III is basically standing and standard judicial review argument --

As I said earlier, it's a nit -- but I disagree that part III represents the notion of standing. The 1st amendment grounds for release resembles the fact pattern of CADC release to the public of parts of the Miller case file, and previously-redacted parts of Judge Tatel's opinion. Moving party Dow Jones/AP lacked "standing," and the CADC specifically cast Dow Jones/AP in the role of Amici Curiae.

In Part III, the ACLU argues, essentially, that the first amendment grants all media organs the right of public inspection of court files. This general right to publicity is different from having a right to weigh-in on a case that will be decided under the court's jurisdiction. The ACLU isn't prosecuting a case to obtain (or reject, or qualify) a surveillance order useful against a telcom; it is suing to publicize the applications and resulting court opinions from already-prosecuted applications to obtain surveillance orders.

The 1st amendment argument is that, independently from matters of statutory jurisdiction and standing, proceedings before a court should be a matter of public record. The ACLU made the 1st amendment argument in its motion, that Court secrecy in general is corrosive to the notion of open government, and the government answered the argument directly.

The presumptively public nature of court proceedings is reversed by the statutory framework that created the FISC. The secrecy aspect is argued in the framework of "classification."

I think the ACLU's best argument involves brightening the distinction between policy and practice; between legal rationale and the specific request that was before the court.

I've looked at the TSP (and lord-only-knows what other privacy compromises) from the direction of the espionage act, and whether the NYT article disclosure was a violation. I ended up in the same place -- that a disclosure of policy doesn't necessarily result in a disclosure of classified procedures or methods.

I still don't see the tight-lipped FISC making a release outside of a declassified opinion or order. That is, whatever it composes will pass under the executive's redaction pen before it becomes public; and the executive has shown a tendency to classify its policies.

In the end, I think the force most likely to have an effect will be public pressure on Congress. At this point, the administration is misleading the public as to the extent of surveillance permitted under the law; creating a false impression that few international communications qualify for being obtained and analyzed - that the LAW creates a significant barrier to privacy encroachment. But the LAW, a creation of Congress, does no such thing -- all international communications are fair game.

The public was fine with that sort of privacy invasion during WWII, and may well be fine with it today, but unless the effect of the law is properly apprehended by the public, Congress will be free to (and it is inclined to) encourage and enable further privacy invasions under the cloak of smoke screens. I predict the telcoms will have their immunity for past violations of federal law, and that the immunity will be signed into law before President Bush leaves office. And further, that while the PAA will be amended, the changes will be cosmetic in nature.

All three branches are in on the scheme of transmogrifying bottom-up limited self-government into a more top-down authoritarian form.

I think we are basically on the same page cboldt. I do believe that arguing your entity can claim a "right of public inspection" is, in essence, a standing agument though. IOW, does the First Amendment confer upon THEM the "right" to seek the information they request. That has been the media grounds in the past - that free press issues confer upon the media rights to access information where the media is not a party in interest but is a representative party with a First Amendment interest in the information.

If you want to denominate it as an argument that "proceedings before a court should be a matter of public record" based on the ACLU's characterization, I think that is ok, but I still think at its heart it is standing. They want information, they aren't a party, so gov is arguing that they have no "right to access" the information (which still comes back to a standing argument imo).

I completely agree that "The ACLU isn't prosecuting a case to obtain (or reject, or qualify) a surveillance order useful against a telcom; it is suing to publicize the applications and resulting court opinions from already-prosecuted applications to obtain surveillance orders."

They are wanting the memorandum opinion and holdings detailing the checks placed on the Exec. IMO, the First amendment argument is not their best "anti-Star Chamber" argument, but perhaps it is? IIRC, there are some cases on secret hearings out there and maybe they are in the ACLU brief and maybe they were First Amendment cases.

But I think the fundamental issue is one that hasn't really been at issue to my knowledge before and that is whether or not courts can make law in secret and without ever divulging that law. I guess you can phrase that in a first amendment, public's "right to know" frame, but I think it goes beyond that to the actual and inherent nature of the judiciary in a Constitutional democracy. There is no such thing as secret law and there is no Constitutional empowerment to any branch of gov to "make" secret law. Absent Constitutional empowerment, they can't do it.

There is also the fact that the whole of the common law tradition adopted by this country is that court-made law is reported. But I think it is basically fundamental to the judiciary process and functioning and is really more central to the actual Constitutionally delegated role of the courts that they are not allowed to, in secret, decide to whom the law should apply and how. And it is a separation of powers issue to say taht the Executive can suppress rulings adverse to it and use its enforcement powers to exempt Executive branch members from enforcement action.

fwiw - like I said, I think we are basically on the same page.

"But the LAW, a creation of Congress, does no such thing -- all international communications are fair game." Well, yeah, except that far as I can tell just about ANY communication made in the United States is now subject to intercept through some tangential tie to something, anything, foreign. Now administration representative scoff at this being their intent; but when has the government not used every inch of rope, and more, they have been given?

As to the standing argument; I'll stay out of that for the most part. It appears to be semantical only to me; and in this case, Cow 1 is Cow 2 (I think this comes from Hayakawa, but not positive any more). The argument is kind of a strange hybrid between jurisdiction and standing created by this strange court's setup. Whatever you want to call it, I call it denied; the ACLU gets to bring this motion.

Oh, and now that I see a new comment from Mary, I want to reiterate that I agree wholeheartedly that the Administration is trying to inappropriately make secret law. The fascinating thing is they are co-opting the judiciary, actually just manipulating the judiciary, through their secrecy attempts and claims. This is absolute bullshit.

-- I think we are basically on the same page cboldt. I do believe that arguing your entity can claim a "right of public inspection" is, in essence, a standing agument though. --

It's a nit pick on my part. I don't see parties in the nature of amici (no matter how strong their interest is) as having standing, but I do appreciate that many people attach "standing" to any party that a court agrees to entertain. What makes the ACLU "special" here is that the FISC took the motion under advisement and requested briefing from the government. But "anybody" could have filed that motion. Indeed, if this one fails, what's to keep AP, Dow Jones, NYT, etc. from making repeat attempts with slightly different arguments? After all, they have the same "standing" with regard to this issue that ACLU has.

I agree with your sense that this attempt to penetrate the secrecy of FISC is new. But attempting to find FISC itself, and/or a FISA warrant unconstitutional has been tried, and has failed.

FISC is fundamentally different from all other Courts in the US. Its very charter asserts secrecy in outcome ... not just secrecy in deliberation, but the very outcomes (orders, opinions, etc.) are, by statute, to be treated as though they were classified.

There are, FWIW, some aspects of law that are secret. See the various black boxes for military and intelligence spending. And AFAIK, turndowns of warrant applications, even in Title III proceedings, aren't made available to the public.

At any rate, semantics and the "FISC secrecy charter" issues aside, I'm sure we're of very similar mind when it comes to concern about the utter lack of transparency here.

When the government sees fit to play secrecy on matters of policy, rather than discuss them openly, we're in deep shit. I wouldn't mind if "foreign intelligence" was limited to spooks, spies and foreign affairs -- but as it stands, "foreign intelligence information" has been casting a considerably wider shadow than that.

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