FISA Appeals Court Opinion
I’ll get to these later. But if you want to start reading them, be my guest.
One thing I note is that they’ve redacted the number of requests this telecom provider got (page 4). They’ve also redacted a description of their term "certain customers."
Also, the Court premised what it was saying on the fact that "The PAA was a stopgap measure."
Another point: there may have been a problem with the original certifications on these surveillance requests.
The original certifications were amended, and we refer throughout to the amended certifications and the directives issued in pursuance thereof.
Everybody and his brothmust be trying to access that opinion, I’m downloading that PDF at about 100 bytes/sec.
Boxturtle (It’ll probably just anger me anyway)
Hmm…. what about the timing of this — same day as “the farewell” speech. Makes me so sick!
“What about the timing”
Ya think? After sitting around for 6 months?
Actually, that’s not necessarily a tell. As John Dean & so many others have noted, this is not just the most secret administration ever – it’s reflexively secret, frequently to the point of absurdity.
That said, this sort of conjecture arises from the appearance that of Bush & Cheney & their apologists Adm casting about for any sign of what any objective viewer would condemn as an interregnum as nonetheless not being an uninterrupted disaster.
But while what the FISC of Review has released here may be thought by some as marketable due to the superficial appearance of the government at a point in time having produced what might possibly be a bucket capable of retaining water, the ruling actually stands for the proposition that, when the government tells the court that it wants access to the well to check to see if any ‘foreign agents’ in the water might be plotting to poison the well & decimate the village’s population & thereby weaken the integrity of the village & its cohesiveness per se, notwithstanding what a clusterf**k the Congress is, & notwithstanding what a bunch of ignorant yahoos, tin-foiled hatted morons & malevolent cheats & liars [it appears] are occupying the White House, unless the telco –
which is going to be faced with the difficulty of explaining to their customers, many of whom can actually read & are college-educated & read DFHs who post at the Daily Koss &Firedoglake & on commie sites like the Nation & Mother Jones & Salon – DFHs like emptywheel & digby & glennzilla, YTF their giving the Bush govt all their emails & gmails & hmails –
unless that telco can actually point to actual evidence that’s capable to a rational conclusion that what’s really going on is that Bush & Cheney want to know whose names to put on the non-fly list & what addresses to put on its NS letters, & are just using the foreign threat as a ruse,
then the FISA courts are going to assume, under the principle of ‘regularity’, that what the telco argues MUST BE BULLSHIT because BUSH & CHENEY ARE BULLSHIT ARTISTS and EVERYTHING BUSH & CHENEY DO IS BASED ON BULLSHIT and EVERYTHING THEY TOUCH TURNS INTO BULLSHIT, which is the BUSH CHENEY BUSINESS-AS-USUAL VERSION OF THE REGULARITY PRINCIPLE,
might actually be well-intentioned, because … well, if it’s really all that bad, why isn’t Congress impeaching these numbskulls?
The author[s] of the opinion use some pretty colorful language in addressing the telco’s rationalizations for challenging the government’s order that it comply. Sometimes that says something about the performance of the attorneys for the telcos – sometimes that in turn reflects on the rationalization for the challenge – & sometimes judges act like horses’ rearends. Without knowing more about the nature of the submissions on behalf of the telcos, IMO there’s no way of telling.
Otherwise, there’s really not much to this decision. It’s supposedly only the second ever decision rendered by the FISC of Review – something I suspect has a lot more to do with the secret nature of the entire FISA structure & the jurisprudential DNA running through the membership of the FISA courts, ensured by the selection process. So even it’s supposed rarity doesn’t suffice to mark it as important. Sorta like that giant ‘pecker supposedly sighted in the Southland a few years back: it was certainly important if what was sighted was a giant ‘pecker & it wasn’t the last one, but who in hell knows if you can’t find it?
All that said, there are in fact a couple of pretty big issues in this, both of which are worthy of public debate & the solemn consideration of the 5 judges on the SCOTUS who aren’t reflexively in the tank for neoconartistry:
One is the extent to which Congress can overrule the Constitution – and more narrowly, whether the PAA did that.
What the FISC of R says, essentially, is: yeah, the executive branch can act like Hoover & Nixon on steroids if they decided to break the law, no matter what laws are in place – but the fact remains that in structure the PAA does not condone law-breaking.
Now, I disagree, tho I doubt that’s causing any loss of sleep in any branch of the government. From my perspective, the Keith decision was tolerable because it started from the proposition that “the law” in question is the 4th Amendment – and individual right of citizenship [and a bit beyond even], not “Teh Law” = National Security but-we-have-to-throw-a-bone-to-the-freakin’-liberals.
This opinion on its face jumps the 4th Amendment shark & starts from the idea that there’s a bunch of yellow tape around this process marked “national security – keep out – secret”, and says to telco: unless you can prove the entire purpose of the government in putting that tape up was to keep America from watching while Republican rent-a-cops beating the crap out of Amy Goodman, we’re going to assume those words mean what they say.
Now, part of the problem here [maybe – WTF really knows?] is that the FISC of R court [and presumably the Reggie below] narrowed the articulation of the telco’s challenge to the things the gummint was actually doing here, rather than leaving it wide like the telco wanted to go after the idea of the 4th amendment acting like an impregnable wall against using a FISA tool to get into the US – being the big open question [or more fairly, ONE of the big open questions] left over from the Keith case.
Where I [and thousands or maybe millions if they thought about it] depart from this approach is in my view that the 4th IS a wall against NO grounds at all, but is NOT impregnable to grounds which meet a test – to return to a thread a day or so back – that is in the ’space just below’ the test that domestic law enforcement has to meet. That ’space’ is, IMO, where there’s still room for the key word in the 4th to operate in context: the word “reasonable”.
The problem I see with the wording of the PAA itself is contextual. To explain: one person can argue that, well, surely the Bush administration isn’t going to take this wide language as a power to drive a truck through it; it’s not as if we have to attach the Keith decision as a schedule – while another person can argue: of COURSE they will, you birdbrain: where do think the Keith decisions of this world come from? Government abuse, you numbskull!
The second point, related to or arising from or included in the discussion above, is the extent to which the executive branch can just put up that yellow tape and stop all discussion without consequences.
But you wanna know what I think turns this high-falutin’ jurisprudential wordsmithery into pure undistilled slough water? The whole system breaks down without oversight & use of the impeachment power.
Per Glenn Greenwald:
UPDATE II: The new FISA court ruling — which The New York Times’ Eric Lichtblau reported here today — is going to be distorted and misunderstood because Lichtblau’s reporting is both deeply confused and plainly inaccurate. Talk Left’s Armando and Anonymous Liberal — both lawyers — detail Lichtblau’s confusions …
Yeah – I read all that before the decision was downloadable. I’m torn on the Lichtblau piece. On the one hand, the criticism by Anon Lib et al, Glenn et al, that was legit, but only to a point, for two reasons: [1] Lichtblau was relying on one, likely more than one, “source”, which means he might have been steered wrong, and [2] as AN & GG & the rest make clear, there’s an unfortunate mix of reporting with editorialization & a tincture of b.s. in the piece, which we all recognize as bearing a BCA and/or establishment fragrance – but at the same time, The Times over the years has made clear it’s news reporting goes through a lot of levels & one wonders how much of this is Lichtblau & how much some dipshit of an agenda-laden re-writer [as distinct from fact-checkers, which I gather increasingly are deemed expendable].
Over the years I’ve read a lot more Risen than Lichtblau, so the latter is tougher for me to form an opinion on – but my impression has been that even with Risen, who I do like, it’s not as if we’re reading someone who’s rocks are as big as say Seymour Hersh, say, or is as able to resist the attractions of shiny objects and overcome obstacles like say James Bamford. Is part of that from the nature of their respective media? Yeah, at least, I would think.
Sorry for any appearance of ducking challenges to my several long responses, but, as with bmaz, duty calls. I’ll check back to concede, fight or parse.
I gotta run out. Haven’t read these folks’ stuff, but I think I know where they are going, and I agree. This FISA opinion looks to be ratifying the legality of the PAA?FAA; but that DOES NOT mean what was done prior to PAA was legal. In fact it might be able to be argued, depending on the phrasing of the ruling, that it helps the argument that anything before PAA was indeed illegal and unconstitutional.
However, this is going to get into technical analysis, and most people we bit off on the Lichtblau hollow BS.
Not to mention that I still maintain, of course, that the PAA?FAA is freaking unconstitutional as hell.
Sure it’s unconstitutional, Bmaz but they got a ruling like you said here:”Um, yeah, I indeed do understand legal construction; and, since you are such a whiz bang, perhaps you ought to take it upon yourself to explain your superior knowledge to all the courts, over all the years, that appear to support the reading promulgated here instead of yours. Best of luck with that.”
So, “Best of luck with that.” Is it any more fun when you’re on the receiving end, even if you’re right (as I was)?
IIRC, income tax was a “stop gap measure” too when it began…camel has its nose in the tent, so to speak.
So, just because a court decided it (even if more than once) doesn’t mean they didn’t get it wrong, and sometimes idiotically, painfully wrong.
Remarkably bad reasoning, but the opinion is well enough organized to state the following:
1. It only purports to deal with actions taken after the Protect America Act.
2. Even more specifically, it only purports to deal with the specific directives being challenged by the telecom at issue (wish I knew who they were, they seem to have dug in, held tough, and made good arguments) and only as those directives were actually being used and applied, at least, “actually” used and applied according to Gov (which hasn’t had much of a track record for lying to tribunals or even more specifically to the FISC)and giving Gov a presumption of truthfulness.
3. The court says that even for the PAA, it isn’t making a general ruling, just a specific ruling under not only the PAA, but under the particular directives issued and based on the truthfulness of Gov’s representations.
4. The court does recognize that there is no Sup Ct case recognizing the Foreign Intel exception (an issue reserved in the Keith case and item apparently specifically raised by the telecom counsel – good job guys)
5. The court’s previous published opinion, which was the really atrocious and almost incomprehensible In Re Sealed case, forms the primary basis, for the court’s decision now – kind of like the Yoo memos. In addition to its own, earlier In re Sealed case op, it relies, not on Foreign Intel cases, but on “special needs” cases and pretty much tosses the criminal purpose and use arguments out the window, even though they are specified in the Keith case as being WHY there might be a Foreign Intel exception – bc the info isn’t to be used for crim cases. So basically, it’s the court’s own prior opinion and a series of short buses.
6. The court has an “oops” moment, when it recognizes that counsel brought something up at oral argument that really could be a big major issue, but then it deals with that by just saying, *well, gov doesn’t think those things are happening and we’re going to tell gov to let the telcom know if those things do happen*
7. An interesting non-redacted sidelight is that the truthful gov lawyers that have never had any problems with lying to tribunals (be it Congress on politicized hiring/firing or courts on torture and document production) or specifically with lying to the FISC (there not being any instances where FISC had to bar an FBI agent from making certifications and kick Townsend’s butt out) –
anyway –
those truthful gov lawyers have told the court a story about databases that goes something like:
Golly – it’s almost as if the founders thought that Executive branch assurances were so spiffy keen that no one should have to ALSO come up with an independent magistrate granting a warrant.
I understand that Bush and Gonzales constitute a “special needs” case, but this decision is really pretty bad. Whether that’s the redacting or other things, it implies and assumes and presumes away any need for a warrant ever – bc after all, golly gee whiz (and god save us from more “firing blanks” and “dog don’t hunt” references) you can just believe the Executive when it says it’s being reasonable.
How do you get that ‘evidence’ of abuse btw, with no lawyers have to certify under oath a judge who might actually hold them to account and no Congressional oversight of the databanks — hell, no briefing even to Congress in general.
I have to keep practicing saying this, but – “It is what it is”
‘I understand Bush and Gonzales constitute a “special needs” case’
Yup, there is some genuine comedy in it, even discounting the lame attempts at humor by the court.
I’m too trying to guess at the identity of the telco. First, I think it’s unlikely to be a ’simple’ “telco”, if that’s not too obtuse [These days none of them are without their complexities.].
What I mean is the NSA has sooooo many ways of grabbing voice calls: by satellite transmission, off-shore looping into cables, side-deal exchanges with friendly sovereign states & their foreign intell services [including western democratic ones like Germany, Italy, Switzerland, Aus, the U.K. & of course Canada], even e-scooping techniques on stretched-out conceptualizations of what constitutes ‘public domain’, it seems likely that the CATEGORY of service provider most JUSTIFIED in the abstract
[assuming for the moment this provider’s concerns were limited to the abstract – which by my reading they were not: SOMEthing or things were been said and/or done in relation to this implementation which appears to have motivated the legal challenge – at least partly; may for reaching a tipping point]
would be firstly, or originally, an ISP, and secondarily, or latterly, a voice-based ISP.
But that needn’t eliminate search-based partners – which after all can be the tails that wag the ISP dogs – which brings up the whole off-PC & cloud-based storage facilities, not just the most famous ones associated with Google, but according to reports Yahoo, even Microsoft Group, & quite a number of universities, both solo & in association with each other & those searchers. We can recall the reports of Google’s leading lights traipsing off to the Beltway, not just in response the DoJ lawsuit that ended in some sort of deal, but reported at various times in 2007 through until after the FISA-amendment/immunity [and maybe thereafter, except the economy cratering would have shoved it off the viewer].
Except that, if the court’s snark attacks accurately reflect poor lawyering, and by extension poorly on the underlying motivation[s] for the challenge, I would expect Google at least, the best suspect in that group, to perform better than the cheapshots suggest – unless those reflect, as I suggested, more on the quality of the court than on the lawyering & the challenge, which would be consistent with crappy opinion writing.
But I’d like to re-visit the earlier response that suggested the timing of the release might have something to do with the Legacy Tour. Maybe; but what if it has more to do with the sort of late enthusiasm for dumping everything all at once, as we’re seeing on the OLC site & the courts are excited about with the impending flood over at NARA? That could be it in a nutshell: part of the ‘crash the system’ approach.
Or is there something about this decision which someone in the Bush administration would see as worthy of suppressing in its interests? If so, the particulars of the challenge being re-dacted has made it too amorphous to these old eyes to be compelling. But then, there is the implication of the Bush administration getting the courts to trust it at a time when the approval and disapproval ratings are not exactly favorable.
The last thing on my check list is for some ‘embarrassment’ factor – to someone; and as we know, that sort of thing can be pretty entre nous & tough for outside-the-Beltway types to pick up on. That is: someone would be chuckling over those shots I/we see as merely cheap & think they’re great putdowns, or something.
Overall it is, as we all seem to agree, both badly put & yet at the same time so narrow to seem quite duck-able.
If what Mary sez is true, the ruling was made without looking at the Bill of Rights. That’s a sad thing for a federal appeals court to do. In fact, it begs the question of what “federal” itself means these days…
To me it sounded like the telecom had raised good issues and the court didn’t really even have actual snark, more a series of references to non-hunting dogs firing blanks that seemed to be offered up in lieu of having decent counters to the arguments.
For example, the repeated references to trusting the gov and presuming their truthfulness and gov’s good intentions run pretty contrary to the existing case law on surveillance in Katz, ” It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer”
The FISA Appellate court attempts to say, *hey, ya know, even if guys went to a court and got a warrant, they might still be bad guys, so it doesn’t matter that we are just relying on a presumption of Gov’s good intentions* I guess if I was trying to sell that in the face of the legitimate argument that the 4th amendment requires more than just relying on the Exec branch being good guys – I’d resort to inanities about hunting dogs and firing blanks too.
And let’s also toss in the disingenuous lack of discussion of general warrants as well. Because what the PAA does is allow, not a court, but the AG and DNI and a host of minions to issue general warrants.
The court can dismiss arguments about whether or not the Exec branch ever has intentions that are not chaste, but it really can’t credibly dismiss from even it’s consideration the fact that the PAA was intentionally drafted so that a power courts are barred from exercising, the issuance of general warrants, was gifted over to the Executive branch without restraint or check.
Compare the footnote dropped by Douglas in his concurrence in the Keith Case addressing, albeit in dicta, the issue of such sweeps of communications
http://caselaw.lp.findlaw.com/…..;invol=297
Douglas concurrence:
footnote 14:
In any event, whether you buy into the concept on dragnets or not, the fact is that the exact same national interests in security vs the rights of American citizens on American soil to be free from govt surviellance but for the issuance of a warrant based on probable cause by an impartial magistrate was addressed. Mitchell even tried to invoke state secrets to prevent the Keith intercept from being addressed by the court in in footnote 2 to the opinion of the court, his affidavit recitals are set forth:
Really, the whole of FISA and the FISCt is premised on this statement from the Keith case
“We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.”
And to the extent the surveillance is and will be taking in (or dragnetting and reviewing in macro or micro amounts) lots of American communications, all with no probable cause that there is either a) a crime being furthered by the communications, or b) that the American citizen on American soil is directly in contact with a foreign power or a foreign power’s agents (as contemplated by the Keith case, not necessarily as now defined by Congress to include a wide assortment of criminals and their criminal organizations, with the kidnap and treatment of Khalid el-Masri exhibit 1 explaining the validity and reliability with which those criminals and organizations are identified when left to the good graces and intentions of an Executive unfettered), I don’t think you begin to have the foreign powers exception that the court enunciated – note the absence of reference by the court to Americans on American soil as opposed to “foreign” powers and their agents.
Mitchell made the argument, as well, at the time that the domestic surveillance cases were really foreign intel surveillance, bc it was all about anti-war issues and so the antiwar groups were a kind of de facto agent for foreign powers.
In any event, it’s a pretty long way from:
“We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents”
to making the case that all American’s communications can be intercepted by an AG or DOJ run amok, acting on their own without oversight or warrant, for the purpose of collecting criminal information for which there is no probable cause to justify a warrant, but under the rubric of collections for the “significant” (not even primary) purpose of “foreign intelligence.”
So, now, as long as your emails or even domestic calls go through a foreign station, is it now a situation where all Americans, in their homes, have to have “Ic Bein Foreigners” in our own homes shoved down our throats?
notahappycamper
There used to be two words: “individualized” and “particularized”.
What happened to those words?
17 – that’s a problem for courts – and that’s why you have legislation that bypasses courts and substitute the AG and a DNI who may not have any legal background whatsoever and certainly have no Constitutional grounds for claiming an ability to issue orders for domestic surveillance for year long periods.
Constitutional prohibitions on the courts are apparently just non-hunting dogs with low sperm counts. AKA Alberto Gonzales.
Turley on Maddow last night
http://www.youtube.com/watch?v=VUuGQx0M4cU
This really isn’t even a decision on the PAA, but only on the Judge’s view of the PAA as applied to the specific directives in front of the court. But I was struck by something that seemed to strike Turley as well, the girly gushing over gov by the court. You almost exepcted the i-s to be dotted with hearts.