Eideard

FISA court contradicts SCOTUS on our rights — in secret of course

with 3 comments

On Tuesday, the Foreign Intelligence Surveillance Court (FISC) declassified an opinion in which it explained why the government’s collection of records of all Americans’ phone calls is constitutional, and that if there is a problem with the program, it is a matter of political judgment, not constitutional law…

…The opinion does not even mention last year’s unanimous US supreme court decision on the fourth amendment and GPS tracking, a decision in which all three opinions include strong language that may render the NSA’s phone records collection program unconstitutional. No court that had been briefed by both sides would have ignored the grave constitutional issues raised by the three opinions of Justices Scalia, Sotomayor, and Alito in United States v Jones. And no opinion that fails to consider these should calm anyone down…

In Jones, the government attached a GPS device to a suspect’s car and tracked all the car’s movements for four weeks. The government argued that since the car was visible on public roads, and could have been tracked in the open by a police officer, no warrant was needed. Just like phone metadata, the car’s movements were not in private – they were on public roads. The lower court had already excluded evidence from when the car was parked in its private parking lot. All nine justices found the tracking unconstitutional, and each of the opinions offer strong reasons to reject the Fisa court’s interpretation of the fourth amendment with regards to phone metadata…

The most sophisticated opinion about how “big data” changes what courts must do to protect against state surveillance was authored by Sotomayor, who also provided the fifth vote for the court’s main opinion. Responding specifically to the claim that GPS tracking involved only non-private information from public travel, Sotomayor wrote that with today’s technology even observing these purely public movements “generates a precise, comprehensive record of a person’s public movements that reflect a wealth of detail about her familial, political, professional, religious and sexual associations”.

As though writing about the NSA program itself, Sotomayor continued…”Awareness that the government may be watching chills associational and expressive freedoms. And the government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse…

…All the Jones opinions offer a very strong argument that the dramatically lower cost of pervasive, sustained surveillance of publicly observable data in bulk implicates the fourth amendment, and that whatever its statutory basis, this program may well violate that amendment. That the FISC opinion did not even mention Jones is as clear a sign as we have that without fundamental reform, Americans simply cannot rely on the Fisa court’s lopsided process to protect our rights.

Lawyers – especially constitutional lawyers – understand how a change in context, in all or part of a process, changes a precedent. For Obama to play “Let’s pretend” with protecting our constitutional rights is a puppet show designed to gloss over the fears of the clueless, prop up the backbone of politicians and pundits who only need the word “legal” in a lie to make it acceptable.

If Obama was only playing the opposition game when he opposed George W. Bush’s playing loose with our freedoms – then he’s just another opportunist hack. If his opposition was legit and, now, the arguments from the NSA/CIA/Pentagon-types have convinced him to accept this crap – then he’s lacking backbone as much as any ordinary Blue Dog Democrat. Either way – instead of providing leadership which BTW doesn’t burn money by the boatload in wasted hours and flunkyland snoop facilities – he’s settling in to the status quo and “change” means that’s what he does to get along with the thugs who really own this nation.

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Written by Ed Campbell

September 22, 2013 at 8:00 pm

3 Responses

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  1. Reblogged this on MJ's Blog and commented:
    In England there was a secret court, called the ‘Star Chamber’, that began as a way to prosecute the elite. However, it was turned into a political tool by the time it was deactivated around 1640. This is very much the same.

    mjfoysr11

    September 22, 2013 at 9:09 pm

  2. The Star Chamber in England was the same. Every secret court becomes used to suppress freedoms and political opposition.

    mjfoysr11

    September 22, 2013 at 9:11 pm

  3. Of course, My favorite aspect of all these times when Obama is playing fast and loose with the Constitution is (quote from Wikipedia here) – ” He worked as a civil rights attorney in Chicago and taught constitutional law at the University of Chicago Law School from 1992 to 2004.” So, I cut him no slack at all. He knows *exactly how wrong everything he does is. GWB could plausibly claim ignorance (on damn near anything under the sun except oil and BBQ), but not Mr. O. I cut him slack in his first term (first terms are a bit of a bargain-fest), but not now. He has no re-election to worry about, so the only question left is “Who bought him, or who threatened his family?” Barring that, I see little difference between him and Shrub.

    Nate Lee

    September 23, 2013 at 5:06 am


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