Only post-Snowden did FISA Court even Consider if NSA Bulk Phone Collection is Legal

(By Michael Masnick)

FISA Court Waited Until After Snowden Leaks To Actually Explore If Bulk Phone Record Collection Was Legal (via Techdirt)

One of the most common defenses of the NSA’s bulk phone record collection (in which they get access to the record of basically every phone call in the US) is that the program has been reviewed and reapproved by the FISA Court every few months. Especially…

10 Responses

  1. It is unfortunate that citizens know so little of the corruption and incompetence of the federal judiciary. Federal judges are selected, trained, and promoted on the basis of cynical right wing loyalties, and have no intention or capacity to regulate the executive branch. With few if any exceptions they hold the childish and anti-American belief that government by definition can do no wrong. The cases are sickening to read: time and again this foolish assumption is made, and principles are bent or fabricated to exonerate government where justice might easily have been done. The only exceptions are cases wherein some other right wing prejudice such as income-class loyalty was stronger.

    There is no hope in minor reforms there, either, because the Constitution provides no checks and balances of the judicial branch: it sits in judgment of itself via its “judicial conference” and without exception finds itself and its own members innocent of everything. The corruption increases at higher levels, which view themselves as autocrats. The Constitution only provides that judges “shall serve during good behavior” with no mechanism to define or enforce this, and certainly that cannot be left to them. Such power corrupts, and attracts the corrupt.

    An institution which did not recognize human rights in the slaves for nearly a century, until forced to do so by Congress in passing the Civil Rights Act of 1872, and which could not then figure out during the next century that it should enforce that, needs to be restructured.

    The executive should simply dismiss judges in large numbers for right wing histories and conduct like that of FISA and Citizens United and the GW Bush election scam, to mention just a few. That is equally in accordance with the Constitution and much needed. There is a case wherein NSA surveillance of private communication is always warranted and should be used.

    • “The executive should simply dismiss judges in large numbers for right wing histories and conduct like that of FISA and Citizens United and the GW Bush election scam, to mention just a few. That is equally in accordance with the Constitution and much needed.”

      The Executive dismissing judges in large numbers because of their perceived ideological stance is in accordance with the Constitution? Afraid not. There is something called the separation of powers that would prevent that from happening. But even if it were possible, would you be just as sanguine if a Republican were elected president and he began dismissing liberal judges in large numbers appointed by Obama?

      • In corruption cases the decision is simple., but as you note, mere ideological stance or judicial theory are not sufficient grounds for discipline. But consistent denial or obstruction of the founding principles or provisions of the Constitution, or decisions which plainly advance gold over humanity, are inconsistent with justice. The distinction in some cases is clear, but in many is as complex as the law, so I propose a College of Legal Advisors to provide guidelines for each area of law and for specific cases, so that radical departures are already argued as offenses of the judge.
        Of course that is a large mechanism, and must also address the evidence of the specific cases.

        There are also intermediate mechanisms such as new trials before remote judges, disciplinary suspensions, etc.

        The current hand-waving about using impeachment by Congress is impractical, as there are about 900 federal judges requiring investigation, and many or most require discipline or replacement. While any mechanism properly separating powers of the federal branches would be preferable to executive dismissals, in the current absence of any checks on the judicial branch the executive can and should make the initial correction. That would certainly spur Congress to amend the Constitution or otherwise provide a workable mechanism.

        • Great ideas. They sound very much like the ones Newt Gingrich has for dismantling what little is left of a Solonic independent judiciary in the US. Maybe you have read this stuff, which is very much in the wind:

          “A Populist Assault on Judicial Independence: Newt Gingrich, Recep Tayyip Edrogan, and Benjamin Netanyahu” — link to The notion obviously has long legs, showing up not surprisingly in the blather of some less savory heads of state elsewhere. There’s a lot more ugly and scary discussion if you search on “gingrich control judiciary appointments.”

          Who will make these momentous decisions about who will sit atop the belief structure, that “rule of law” thing, that cherished chimaerical shibboleth that is one of the few remaining myths that holds our polity together, that keeps us all from going altogether Galt? People need and want some assurance that they are protected against arbitrary power, whether it’s Banksters forking the whole economy or doing a Henry “It’s A Wonderful Life” Potter and stealing their homes, or “libruls” letting pot-smoking unfortunates out of overcrowded jails to make room for really bad apples.

          Consider how it works in Chicago, where the judges are “elected,” with periodic “retention ballots” that have removed a tiny number of sitting judges over the years, usually in orchestrated “hits” by the Machine and media, but the jurists are actually appointed by and responsive to the Machine. With advice and comment of the Bar Association, of course, which is such a representative body, isn’t it?

          That crony corrupt process goes up to the federal level in the 7th Circuit. Look at who appointed the vast majority of the sitting and recent judges — Reagan, Nixon, the Bush League, etc. link to That these people rule in favor of property over persons most of the time seems pretty clear. I was involved in cases (decades ago now) where the political motivations and rulings were disgustingly clear. The state court judges in Chicago got a little corrective from “Operation Greylord ” back in the ’80s, link to, but you can bet it has long since been back to biness as usual there. The courts have been packed with “conservatives,” because those folks are organized and have strong pecuniary interests and are wonky enough to figure out how to game the system consistently in their favor.

          I don’t think there is any easy answer to the problems that were so glaringly apparent to the drafters of the Constitution, looking over at England in its then state. How do you ensure that humans put in positions of great power will “apply the law,” particularly common law, and “Constitutional law,” that grows and supposedly perfects itself by judge-made extensions, limitations and creations of legal principles and rules? And apply it to the general benefit, instead of protecting power and privilege?

          Appointing or electing judges will both still result in a lot of fiscally and socially corrupt judges, whatever your politics say those terms mean. I will insist that putting some super-vetting conclave together to root out “impropriety” and ensure “orthodoxy” in the judiciary will immediately result in capture by the concentrated clout, wealth and efforts of the worst of us. It’s what Gingrich and Netanyahu want, to protect their “interests?” No thanks.

        • Good thoughts, and I have just that concern. But surely there is a better way if we pursue it.

  2. Gotta respond to this remark: ” There is a case wherein NSA surveillance of private communication is always warranted and should be used.”

    Be very careful what you wish for.

    It’s hard to find a non-corrupt agency, entity, individual anywhere in government, a certain amount of that being apparently inevitable, but it sure seems to me the NSA is NOT the entity you want to encourage to examine the federal judiciary. Hoover did it to enhance his power, and the NSA is his heir. The FBI can and could address outrages by the “judges” so carefully packed into the court system by decades of well-planned work by the “wrong-wingers,” abetted by our pusillanimous and also largely corrupt Democrats. As an EPA enforcement attorney, I got to see a little of the workings of the US Attorney system, the Department of Justice and a number of federal judges and appellate panels. There’s both the old-fashioned kind of bribery-type corruption, and the “social corruption” you refer to.

    One example: the US Attorney’s office in an Ohio city went after a particularly corrupt chief judge. The FBI investigated, but because the prosecution was kind of half-hearted, the judge was able to hide behind the Black Robe Curtain and his “Constitutional” protection of that Article III language about “good behavior,” a pretty amorphous standard, albeit with some subsequent judicial gloss. “If you shoot at the king, be sure to kill him,” and since they failed, the judge booted the US Attorney’s offices out of the courthouse to a run-down office building about 5 blocks away (in freezing weather, rain and wind, a nasty and lasting vengeance).

    Would you really trust the NSA, with its perks and power to protect and grow, to be gathering “intel” on even our most dishonest and corrupt judges? Not that they aren’t already, along with the rest of us…

    • You’re quite right, I concluded in haste and humor, to turn the dogs loose on the dogs. More study of internal investigation structures would be useful. But I enjoyed your observations and anecdote.

  3. The genie is out of the bottle in terms of surveillance trends. Factor in the FACT that these technologies stand to increase in power and sophistication exponentially (at least) regardless of political and bureaucratic incentives to do even more, and its a waste of energy to fight the tide.

    Our energy would be better spent on how to manage the inevitable, and given the toothlessness of the FISA court and NSA resistance to Obama’s absolutely nominal reforms, such a redesign needs to start with a clean slate.

Comments are closed.