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FISA Judges Oppose Intelligence Reform Proposals Aimed At Court

Soulskill posted about 9 months ago | from the you-can-trust-us dept.

The Courts 187

cold fjord writes "The LA Times reports, 'Judges on the ... surveillance court have strongly rejected any proposed changes to their review process ... In a blunt letter to the House and Senate intelligence and judiciary committees, U.S. District Judge John D. Bates made it clear that the 11 judges on the Foreign Intelligence Surveillance Court are united in opposition to key recommendations by a presidential task force last month ... their skepticism adds to a list of hurdles for those advocating significant reforms following former National Security Agency contractor Edward Snowden's massive disclosures of domestic and foreign surveillance programs. ... Obama and some intelligence officials have publicly signaled support for creating an adversarial legal process in the court ... and aides have suggested the president will create an advocate's position or call for legislation to do so ... But Bates disagreed sharply, arguing that "the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation." Adding an advocate to "run-of-the-mill FISA matters would substantially hamper the work of the courts without providing any countervailing benefit in terms of privacy protection," he added.' — The Hill adds that Bates, "... recommended an advocate chosen by the court, rather than an independent authority, for only a limited number of cases. " — More at Computerworld and NPR."

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EMBRACE YOUR SURVEILLANCE! (3, Insightful)

Jeremiah Cornelius (137) | about 9 months ago | (#45969477)

You'll be crushed, either way. The ratchet turns only one way.

From the article... (2)

cayenne8 (626475) | about 9 months ago | (#45969563)

Adding an advocate to "run-of-the-mill FISA matters would substantially hamper the work of the courts

Hey...it's a start.

Re:From the article... (4, Informative)

Anonymous Coward | about 9 months ago | (#45969679)

Correct. These are the same corrupt judges that granted the wide open warrants. Warrants that are exactly what the bill of rights was meant to prohibit. These judges have no respect for the constitution and they haven't had for a long time.

It's not just that their opinion doesn't count. It's that there are strong reasons to believe that their opinions are diametrically opposed to the correct ones.

Re:From the article... (1)

Anonymous Coward | about 9 months ago | (#45970065)

Yes, imagine that... A "secret" court opposed to reform and oversight. Corruption has embedded itself in all three branches of gov't. They are no more checks and balances nor integrity. What I cannot figured out is how these courts/judges expect for the American citizen to abide by their unlawful, unconstitutional opinions. I guess they believe they have the power over us serfs eh? The hammer as it were. Amazing how fast this country is degrading to revolutionary resolution status...abolish the gov't the only path as Prof. Turly (sp?) put it. It's a coming.

Re:From the article... (0)

Anonymous Coward | about 9 months ago | (#45970479)

Osama bin Laden is enjoying retirement in the South Pacific laughing all the while as the United States of Amerika (The Great Satan) twists itself into a totalitarian state only much worse than those the Government of the United States of Amerika claimed to bring freedom and democracy as the pretence for military invasion to secure access to the oil fields and "rendition camps." Alas, the Roman Empire crumbles under its hubris and debauchery.

Re:From the article... (4, Interesting)

icebike (68054) | about 9 months ago | (#45970589)

"Secret court wants to remain secret.". Film at 11.

The judges were originally placed there to prevent abuse, and protect the public from abuses, and in short, to serve as an advocate for the citizens. Now, when they have been hopelessly co-opted by the intelligence community, they argue that this very role has no validity, and the vehemently object to any watch dog looking over their sholders.

While I agree with the judges that
" Adding an advocate to "run-of-the-mill FISA matters would substantially hamper the work of the courts without providing any countervailing benefit in terms of privacy protection," its clear that this would ONLY be true because they, and the spy agencies they serve, would see to it that it was true.

These guys aren't interested in protecting the citizens or the constitution. They are interested in protecting their asses, because they have authorized so many illegal acts on a routine basis that they fear serious jail time.

Start with impeaching these judges. Then work your way down.

Re:EMBRACE YOUR SURVEILLANCE! (-1, Troll)

cold fjord (826450) | about 9 months ago | (#45969843)

You'll be crushed, either way. The ratchet turns only one way.

Like the wartime censorship, surveillance, and other security measures used in WW I & II?

Re:EMBRACE YOUR SURVEILLANCE! (1)

Jeremiah Cornelius (137) | about 9 months ago | (#45969951)

Epicycles. :-)

Re:EMBRACE YOUR SURVEILLANCE! (1)

cold fjord (826450) | about 9 months ago | (#45969971)

LOL

Re:EMBRACE YOUR SURVEILLANCE! (0)

Anonymous Coward | about 9 months ago | (#45969991)

We're way beyond those now.

The solution (1)

careysb (566113) | about 9 months ago | (#45970067)

The whole solution is to slash the NSA budget and let them figure out where to get the most bang for their buck. They'll never tell you the truth about what they're up to and the "secret" courts are a joke. Cut their budget in half and they may have to choose between spying on their citizens and spying on foreign nationals.

Re:The solution (1)

Jeremiah Cornelius (137) | about 9 months ago | (#45970323)

The whole solution is to slash the NSA budget and let them figure out where to get the most bang for their buck. They'll never tell you the truth about what they're up to and the "secret" courts are a joke. Cut their budget in half and they may have to choose between spying on their citizens and spying on foreign nationals.

Have you investigated things like "Pentagon audit" or "Black budget"?

  NSA operates under the jurisdiction of the Department of Defense and reports to the Director of National Intelligence.

Congress will not ever touch "defense" appropriations, and were they to do so the DoD "dark matter" will just funnel here. If the agency PR is so very bad, then the real functions function will just move to different sponsorship, under DISA or something.

You have no Republic.

Re:The solution (0)

Anonymous Coward | about 9 months ago | (#45970551)

The whole solution is to slash the NSA budget and let them figure out where to get the most bang for their buck. They'll never tell you the truth about what they're up to and the "secret" courts are a joke. Cut their budget in half and they may have to choose between spying on their citizens and spying on foreign nationals.

The NSA has embarked upon a marketing (propaganda) campaign through its presence on the television series NCIS. Ellie Bishop, the newest member of the team is a former NSA intelligence analyst and very disarmingly attractive too boot. http://xfinity.comcast.net/blogs/tv/2013/11/18/ncis-ellie-bishop-becomes-the-new-member-of-the-team/

Indeed (1)

mbone (558574) | about 9 months ago | (#45969487)

And we should trust them why, exactly? Because they were on top of this stuff before? Sure doesn't seem that way to me.

Re:Indeed (0)

Anonymous Coward | about 9 months ago | (#45969515)

The proposals were garbage, anyway. They didn't suggest that we stop collecting the metadata (data) completely.

It's rigged (5, Insightful)

Astro Dr Dave (787433) | about 9 months ago | (#45969493)

If they're against an adversarial process, that suggests that the FISA court is not a neutral party. While I agree that it is inadequate, a third-party advocate for civil liberties would be better than the nothing that we have at the moment.

I'm suspicious of an advocate chosen by the court. Fox guarding the henhouse?

Then again, I'm also suspicious of secret court proceedings.

Re:It's rigged (0)

Anonymous Coward | about 9 months ago | (#45969553)

Basically an adversary would make their jobs harder and delay, impeed or eliminate the "rubber stamp" process.

Re:It's rigged (4, Insightful)

NewWorldDan (899800) | about 9 months ago | (#45969559)

They're judges. It's not their job to make policy. If they're all united against reform, then they all need to be removed from the court. Then again, the FISA court should be disbanded anyway. I can hardly think of anything more un-American than secret courts.

Re:It's rigged (-1, Troll)

cold fjord (826450) | about 9 months ago | (#45969681)

Disbanding the FISA court wouldn't get you anything. Other courts deal with classified or confidential information too. You still don't get to see it if it is from a court besides the FISA court.

The FISA court isn't a secret court. Its members are public record, as is its function. The warrants it issues are confidential since publicizing the list of spies terrorists under surveillance would be counter-productive. If you have a way of making the information available to 299,999,999 people in the US while excluding the 1 under surveillance, and are sure his friends wouldn't tell him, I'm sure they would love to hear it.

What I'd like (1)

ArchieBunker (132337) | about 9 months ago | (#45970419)

Is someone to identify all these FISA judges and get their personal information out there. Kind of like the documentary about the people on the secret MPAA ratings board (which is a brilliant documentary).

Re:It's rigged (0)

Anonymous Coward | about 9 months ago | (#45969599)

Fire them and throw them into jail.

Re:It's rigged (4, Insightful)

Astro Dr Dave (787433) | about 9 months ago | (#45969909)

Fire them and throw them into jail.

A federal judge will never go to prison for rendering judgments favorable to the administration.

Soap box, ballot box, jury box... all have been subverted or suppressed to the point of failure. Massive protests? We had some a couple years ago, they were shut down by riot police. Elections are subverted by the money and connections necessary to get your name on a ballot. The jury box is of little utility. The role of a jury today is lessened from what it once was. The DoJ is more interested in prosecuting whistle-blowers while declining to prosecute bankers or even investigate documented illegal acts within the Executive branch, past and present. Hell, Holder even thinks he can justify extra-judicial killings of Americans.

"America is at that awkward stage. It's too late to work within the system, but too early to shoot the bastards." -- Claire Wolfe

The "awkward stage" ends when the populace is more concerned with civil rights than American Idol. I don't see that happening yet. It might be possible to reign in some abusive practices without violence, but the more time passes the more difficult that will be.

Re:It's rigged (4, Insightful)

Obfuscant (592200) | about 9 months ago | (#45969653)

If they're against an adversarial process, that suggests that the FISA court is not a neutral party.

You didn't read the summary. They aren't against "an adversarial process", they're against a process that won't actually create the adversarial process that the proponents intend it to.

As it says in the summary, the judges believe that adding an "advocate" won't create an adversarial process and won't add any significant amount of information to be useful in the judicial process, because the person appointed to that role won't be able to do any investigations or even contact the suspect.

Here's a car analogy: you take your car into the shop because the brakes aren't working well. The mechanic says "your brakes aren't working well, I need to change your air filter and add a speed governor to your car so you can't go faster than 45 MPH". You say "no". What, are you against having working brakes? Of course not, you're against paying for "fixes" that don't fix the brakes.

Re:It's rigged (1)

Astro Dr Dave (787433) | about 9 months ago | (#45969945)

I read not only the summary, but actual articles. It's still worth having a devil's advocate arguing with the evidence presented.

Re:It's rigged (0)

Anonymous Coward | about 9 months ago | (#45970027)

Except nobody agrees with what the judges are saying. Or the mechanic.

Re:It's rigged (2)

Qzukk (229616) | about 9 months ago | (#45969661)

To be fair, the judge is saying that what is being recommended is not an adversarial process, and he's right.

I don't have any better suggestions though.

Re:It's rigged (0)

Anonymous Coward | about 9 months ago | (#45970415)

You could have a mandatory declassification process. Make it a ten year max with the court able to schedule its public release sooner. Maybe it will be too late to remove any politicians, but at least reputations will be on the line. That's not nothing.

Re:It's rigged (1)

whoever57 (658626) | about 9 months ago | (#45970505)

To be fair, the judge is saying that what is being recommended is not an adversarial process, and he's right.

I don't have any better suggestions though.

The constitution has an answer for you: since the FISA court does not have an adversarial process, there are no controversies, so the FISA court simply should not exist.

Re:It's rigged (2)

steelfood (895457) | about 9 months ago | (#45969695)

They bring up good points. But their solution, to do nothing at all, is unacceptable. Would they perhaps prefer to outright dissolve the secret nature of the court, seeing as that would be the only solution to their concerns? Perhaps they should rule that secret proceedings where the accused is unable to face his/her accusers are outright unconstitutional, that the existing warrant-granting procedure is more than sufficiently secretive in nature that the FISA courts provide no additional benefits, but incur a much higher cost to our founding principles of freedom and civil rights.

Re:It's rigged (1)

Obfuscant (592200) | about 9 months ago | (#45969783)

But their solution, to do nothing at all, is unacceptable.

If you read all the way to then end of the summary, you'll notice:

The Hill adds that Bates, "... recommended an advocate chosen by the court, rather than an independent authority, for only a limited number of cases.

That's not "do nothing" by a long shot. It's not what you want them to do, but to call it "nothing" is dishonest.

Re:It's rigged (2)

Ken D (100098) | about 9 months ago | (#45969969)

You're right, it's not nothing. It's a fig leaf.
Because obviously, if they can figure out which of these limited cases are so special, they could give those cases extra thought today, without any changes.

The FISA judges judgement is suspect. Putting anything under their discretion is NOT an improvement.

Re:It's rigged (1)

NatasRevol (731260) | about 9 months ago | (#45970087)

It's actually worse than do nothing.

It's get policed by people we choose.

Re:It's rigged (2, Insightful)

CanHasDIY (1672858) | about 9 months ago | (#45969707)

If they're against an adversarial process, that suggests that the FISA court is not a neutral party. While I agree that it is inadequate, a third-party advocate for civil liberties would be better than the nothing that we have at the moment.

I'm suspicious of an advocate chosen by the court. Fox guarding the henhouse?

Then again, I'm also suspicious of secret court proceedings.

I think of it this way:

The Constitution, which cannot be superseded by anything other than a Constitutional Amendment, states in her Fifth Amendment [emphasis added]:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

As well as in the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Therefore, as no Constitutional Amendment has thus far been passed that would negate the Fifth and Sixth, then the FISA court and all its decisions are de facto unconstitutional.

Re:It's rigged (1, Informative)

cold fjord (826450) | about 9 months ago | (#45969787)

The FISA court isn't a trial court. Nobody is being "held to answer for a capital, or otherwise infamous crime." It is letting investigators investigate by issuing warrants.

Re:It's rigged (1, Interesting)

CanHasDIY (1672858) | about 9 months ago | (#45969985)

The FISA court isn't a trial court. Nobody is being "held to answer for a capital, or otherwise infamous crime." It is letting investigators investigate by issuing warrants.

Without justification based upon probable cause.

Which is still unconstitutional, but in a different way I mentioned.

FYI - the fact that America has a "court" that is not open to public scrutiny is blatantly unconstitutional, no matter what rationale you try to use to justify it.

Re:It's rigged (0)

Anonymous Coward | about 9 months ago | (#45970437)

It very much matters how you justify it. Throwing out constitutional arguments without merit makes it sound like you think "unconstitutional" is simply a synonym for "bad," and hurts the very cause you are trying to advance.

Re:It's rigged (1)

AHuxley (892839) | about 9 months ago | (#45970263)

That was to try and protect the other freedoms enjoyed in the USA Cold i.e. the activities under the First Amendment for a "U.S. person".

Re:It's rigged (2)

Obfuscant (592200) | about 9 months ago | (#45969835)

Therefore, as no Constitutional Amendment has thus far been passed that would negate the Fifth and Sixth, then the FISA court and all its decisions are de facto unconstitutional.

If the glove doesn't fit, you must acquit!

The fifth and sixth are not relevant since the FISA court isn't holding anyone "to answer" or creating "double jeopardy", nor is it dealing with any criminal prosecution. Their decisions are not, thus, defacto unconstitutional based on the fifth or sixth amendments.

What the FISA courts do is issue warrants, so if you want to argue fourth amendment issues, ok.

As for the GP saying he's skeptical of court appointed advocates, well, the courts have a long history of appointing advocates. In fact, "if you cannot afford one, you will be appointed one prior to questioning." Miranda.

Re:It's rigged (0)

CanHasDIY (1672858) | about 9 months ago | (#45969963)

Therefore, as no Constitutional Amendment has thus far been passed that would negate the Fifth and Sixth, then the FISA court and all its decisions are de facto unconstitutional.

If the glove doesn't fit, you must acquit!

The fifth and sixth are not relevant since the FISA court isn't holding anyone "to answer" or creating "double jeopardy", nor is it dealing with any criminal prosecution. Their decisions are not, thus, defacto unconstitutional based on the fifth or sixth amendments.

What the FISA courts do is issue warrants, so if you want to argue fourth amendment issues, ok.

What are they issuing warrants on, if no one has been charged with a crime? That in itself is a Constitutional violation.

As for the GP saying he's skeptical of court appointed advocates, well, the courts have a long history of appointing advocates. In fact, "if you cannot afford one, you will be appointed one prior to questioning." Miranda.

Yea, let's go ahead and pretend there's no difference between a public defender appointed by a Constitutionally legitimate court, and an "advocate" appointed by a secret court, that issues secret warrants, makes secret ruling, etc.

Re:It's rigged (0)

Anonymous Coward | about 9 months ago | (#45970085)

You clearly don't know how the warrant system works. Warrants are frequently issued to perform an investigation of a crime before anyone is charged. Cops get warrants to wire tap phones back in the day. The suspects never knew there were tapped prior to an arrest. If the tap resulted in no evidence to make an arrest the suspect was never made aware that they were tapped. So go ahead and keep pretending you know how the legal system even is supposed to work.

Re: It's rigged (0)

Anonymous Coward | about 9 months ago | (#45970157)

Search warrants (the precursor to "surveillance warrants", if that's the right term) have never been contingent on anyone being charged or held. So no, there's no violation there.

Fourth amendment is where it's at. Stop trying to drag in the 5th and 6th, they just don't belong here.

Re:It's rigged (2)

Dahamma (304068) | about 9 months ago | (#45970201)

What are they issuing warrants on, if no one has been charged with a crime? That in itself is a Constitutional violation.

No, it's not. There is nothing in the Constitution that requires someone be charged with a crime to issue a warrant. It just requires probable cause and the place/thing s to be searched or seized.

I don't think most people here necessarily disagree with your outrage, but none of your points have had any significant basis in Constitutional law so far. Less emotion and more logic required to win over this crowd :)

And before you mention probably cause again the real issue is NOT that there is no probable cause or that there are specifics mentioned in the warrant - you can't argue that because that's the whole point, it's classified, so of course you have no idea what they contain. And THAT, in fact, IS the real issue: no one except the FISA court can even debate the Constitutionality of the warrants since they are the only ones who get to see them. And unfortunately there is nothing in the Constitution that says the warrants have to be public, so right now it's all up to the procedure/policy of those who issue the warrants (the Executive branch) and those who grant them.

Then again - we the people can modify the Constitution with enough support if people *really* care, we should change it rather than just debating things that aren't currently in it...

Re:It's rigged (0)

Anonymous Coward | about 9 months ago | (#45970205)

So you said warrants are not dealing with any criminal prosecution.

I think you're talking out your ass.

To Rephrase (1)

CanHasDIY (1672858) | about 9 months ago | (#45970021)

I may have gone off on a tangent and lost my original intent, so let me try again:

As the Constitution does not specifically grant the federal government power to create secret courts, the existence of secret courts (and thus, all decisions handed down by them) are de facto unconstitutional, per the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people

Re: To Rephrase (1)

Anonymous Coward | about 9 months ago | (#45970199)

Article 1 of the Constitution gives Congress the enumerated right "To constitute Tribunals inferior to the supreme Court".

So as long as the FISA court is "inferior to the supreme Court", you can't argue 10th amendment grounds either.

Re:It's rigged (4, Informative)

afidel (530433) | about 9 months ago | (#45969735)

Considering the court rubber stamps 99+% of garbage put in front of them it's pretty obvious that their oversight is inadequate, even the most tough on crime judges in general criminal courts don't approve that high a percent of warrant requests.

Re:It's rigged (1)

sqrt(2) (786011) | about 9 months ago | (#45970383)

It's theoretically possible that they don't bother submitting requests unless they are highly confident it will be accepted. I don't believe that, but it's at least possible. We need to know more about the process and the types of requests--unfortunately that's difficult with a secret court.

Re:It's rigged (1)

mrchaotica (681592) | about 9 months ago | (#45970095)

I'm suspicious of an advocate chosen by the court. Fox guarding the henhouse?

I'm suspicious of an advocate chosen by anyone connected to the US Federal government. However, I agree that one chosen by the court itself would be particularly bad.

Trust me! (-1)

Anonymous Coward | about 9 months ago | (#45969499)

i have frosty piss!

Re:Trust me! (0)

Anonymous Coward | about 9 months ago | (#45969601)

And the court will never know because they don't want the truth, they just want to be able to take the word of those trusted government lawyers that can't do their jobs unless no one knows about what they do - not even the targets of their prosecutions.
Any resistance to their secret court of secret laws would make them subject to the light of legal, governmental and public scrutiny.

Shocking (5, Interesting)

josephtd (817237) | about 9 months ago | (#45969505)

Organization accustomed to operating in secret resists the notion of having a potential opposing viewpoint to consider. I understand that they feel this suggested reform indicated the American people have decided they do not trust in the impartial judgment of this panel. Perhaps we should just remove the defense attorney from criminal proceedings as well. That should clear out the case backlog, I mean obviously Federal judges are beyond reproach. Let's kill the appellate courts while we are at it too. That should save time and money as well.

Re:Shocking (2)

TubeSteak (669689) | about 9 months ago | (#45969981)

Perhaps we should just remove the defense attorney from criminal proceedings as well. That should clear out the case backlog,

Something like 80%~97% [nytimes.com] of ALL criminal cases are settled by plea agreement.
(Depending on the jurisdiction and specific court)

Traffic and misdemeanor courts have similarly high rates of plea bargains or guilty pleas.

If there's a backlog in the court system, it's entirely because of underfunding.

Re:Shocking (1)

briancox2 (2417470) | about 9 months ago | (#45970567)

And in other new, BP would like to keep its environmental inspectors in their backpocket and Monsanto sees no reason that FDA officials should not be allowed to own lots of stock in their company.

Privacy (0)

Anonymous Coward | about 9 months ago | (#45969513)

It is not something you get. It is something you take.

The Court (-1)

Anonymous Coward | about 9 months ago | (#45969533)

The court is populated by judges that in my personal experience are unnaturally focused on citizens rights. I know this.

So when they "collectively" suggest that this process is not broken I believe it, even if it runs against my own bias' as well as public "noise". The public is not informed on any topic, much less legal, constitutional, or rights. This public eats, drinks, shops, plays games and occasionally works if it's not too inconvenient.

These judges are part of the old school of rights and constitution matters, but also consider national security important. I have been part of a case with one and I was impressed, and that's hard to do.

I say yea.

JJ

Re:The Court (1)

YumoolaJohn (3478173) | about 9 months ago | (#45969793)

I can't imagine how allowing the collection of metadata on just about everyone means that someone is "unnaturally focused on citizens rights." It's just the opposite, and you're a naive fool.

Re:The Court (1)

NatasRevol (731260) | about 9 months ago | (#45970213)

Well, perhaps not naive.

A government relinquishing even a little power? (1)

Anonymous Coward | about 9 months ago | (#45969539)

Few men in the history of the world gave up power after taking it: Cincinnatus and George Washington are the most recent examples, and they died hundreds of years ago.

Re:A government relinquishing even a little power? (1)

sconeu (64226) | about 9 months ago | (#45970175)

Vaclav Havel?
Nelson Mandela?

Bollocks (0)

Anonymous Coward | about 9 months ago | (#45970221)

Every democratic leader does this, unless they die in office.

Re:A government relinquishing even a little power? (1)

Anonymous Coward | about 9 months ago | (#45970345)

Several cases exist, and some are not even dead now.

For example: Spanish king Juan Carlos may be a figurehead douchebag, but the fact is that Franco groomed him to be a fascist totalitarian head of state upon his death.
Juan Carlos instead rejected this plan when Franco died, and helped Spain transition towards a constitutional monarchy with a democratically elected government.

I agree (1)

Anonymous Coward | about 9 months ago | (#45969551)

I agree with the judges, based on where they currently sit. An advocate or any type of ancillary support for this stuff will just provide the illusion of a counter-argument.

However, I don't believe they should be sitting there in the first place. I bet if you asked their private opinions, they'd say the laws being enacted are what hampers their ability to protect freedom of speech and privacy, not the method by which they make their discussions.

It's basically that congress is trying to blame the problem on the judges, and they're saying: If you don't want this shit behind closed doors, stop making so much shit that goes behind doors.

Clearly, congress should be stripping away the power of it's various 'security' apparatus, and the judges are not the ones preventing that from happening.

No authority (0)

Anonymous Coward | about 9 months ago | (#45969573)

FISA courts are invalid and have no authority.

Re:No authority (1)

AHuxley (892839) | about 9 months ago | (#45970141)

Yes it was just oversight and review of "Foreign" intelligence to protect US rights as the NSA gathered the worlds data back in the mid 1970's.
Now we are seeing a concerted sock puppet effort to turn what was never more than cleared oversight and review into some domestic US legal justification for endless domestic surveillance.

Surprised? (0)

Anonymous Coward | about 9 months ago | (#45969581)

Are you surprised? If there was real oversight how could the "impartial" judges use their position for political favors. If you think that a political connected judge can/could/would choose to give up 1 iota of their power then you are very naive.

Quote " Most surprisingly, Bates said the judges opposed adding an independent advocate for privacy and civil liberties to the court's classified hearings, saying the proposal was "unnecessary — and could prove counterproductive."

http://www.latimes.com/nation/la-na-nsa-reform-20140115,0,5995749.story#ixzz2qVKeG7mQ.

You want a real impartial court to decide on surveillance ops/taps/intercepts then take 10 randomly selected people with no political or industrial ties, sequester them from the public and use them to rule on the secrets.

Zero sympathy (5, Insightful)

epyT-R (613989) | about 9 months ago | (#45969591)

So an advocate would not benefit the process? Then the process is broken. In the interests of protecting innocents from government overreach, dissolve the FISA court.

I'd like my rights, freedoms, and liberties back please. I don't need or want you or your 'protection.'

Re:Zero sympathy (0)

Anonymous Coward | about 9 months ago | (#45969723)

Can't, don't or won't you recall that the price of Liberty is eternal, infernal and diurnal and nocturnal vigilance? People don't actually want your rights if you're not willing to defend them. Rights shouldn't be treated simply as a matter of convenience.

Re:Zero sympathy (1)

epyT-R (613989) | about 9 months ago | (#45970089)

You are correct, but when the majority of the population is apathetic, there isn't much one person can do. One person can appear to make a difference when things have gotten bad enough that the general population is on a hair trigger.

Re:Zero sympathy (1)

Obfuscant (592200) | about 9 months ago | (#45969741)

So an advocate would not benefit the process? Then the process is broken.

As it reports in the summary, adding an advocate that cannot do more than say "you shouldn't do this" would not benefit the process. It would be like having a defense attorney that couldn't speak to the defendent and couldn't investigate the alleged crimes. All he'd have to look at is the filing from the government, and the judges can already read that.

Re:Zero sympathy (1)

epyT-R (613989) | about 9 months ago | (#45970115)

That's right. So, it's useless, and the FISA court is useless. Sane justice includes representation by all parties involved being present and publicly accountable. Without that, it's just one part of the government rubberstamping approval for another part.

Re:Zero sympathy (2)

Obfuscant (592200) | about 9 months ago | (#45970327)

That's right. So, it's useless, and the FISA court is useless.

Your first claim is correct. Your second claim is not supported by the first. The idea that an advocate who can do nothing substantial to advocate making his appointment useless doesn't make the entire court useless.

Sane justice includes representation by all parties involved being present and publicly accountable.

The court being discussed is the FISA court. It's not a court where people stand accused of a crime or seek "justice". It's a court where the government gets search warrant requests approved.

If you think all parties are involved, present and accountable, whenever a regular search warrant is issued, you are hopelessly underinformed. The party seeking the search warrant goes to the judge, swears his information is good, maybe has someone to support the claims, and the judge signs off. If you think there's a call to the subject of the warrant saying "hey, you need to come to court to defend yourself against this warrant", you're wrong. Were that to happen, the first thing that would occur is the suspect destroying the evidence, then getting in the car to go to court.

The only "representation" comes after the fact when the lawyers get to argue whether the warrant should have been issued, but before it happens, no.

Re:Zero sympathy (1)

cold fjord (826450) | about 9 months ago | (#45969929)

So an advocate would not benefit the process? Then the process is broken. In the interests of protecting innocents from government overreach, dissolve the FISA court.

Issuing investigative warrants generally isn't an adversarial process even in ordinary courts. An ordinary court handling the warrant requests would still apply the same standards, and would be burdened by the confidentiality requirements. Dissolving the FISA court doesn't get you anything.

Re:Zero sympathy (1)

epyT-R (613989) | about 9 months ago | (#45970203)

Well the whole point of FISA was 'confidentiality,' but I think it's counterproductive to the interests of transparent government, which is a requirement for a free society.

If there are foreign agents on US soil causing such harm that officials feel the need to compromise our justice system, maybe it's time for them to grow a pair again and actually declare war on some of these countries.

Who needs due diligence... (1)

Karmashock (2415832) | about 9 months ago | (#45969595)

... When you have a box full of rubber stamps and barrels of ink?

Of course they are going to reject it (0)

Anonymous Coward | about 9 months ago | (#45969605)

Because when it changes those judges will be exposed as treasonous traitors of the United States.

They want to keep their treason ripe and unexposed.

I thought (0)

Anonymous Coward | about 9 months ago | (#45969627)

One of reasons for the "Revolution" was secret courts.

Re:I thought (1)

cold fjord (826450) | about 9 months ago | (#45969733)

That secret court, the Star Chamber, was a trial court. The FISA court isn't a trial court. It's main function is to issue warrants for investigation. Trials occur in other courts.

Re:I thought (0)

Anonymous Coward | about 9 months ago | (#45970025)

Who gives a fuck? If it issues warrants, it's a court. If it's a court, there are rules by which it must operate.

Otherwise, why don't I get some funding from Y Combinator and open Warrants.com: The Warrant Store?

Re:I thought (1)

cold fjord (826450) | about 9 months ago | (#45970109)

The FISA court operates under the laws passed by Congress, the same as any other court would.

Re:I thought (1)

AHuxley (892839) | about 9 months ago | (#45970427)

The problem with "investigation" is the domestic the protections offered under the First Amendment.
The http://en.wikipedia.org/wiki/Star_Chamber [wikipedia.org] was well understood wrt the Fifth Amendment.

Hold on there... (5, Insightful)

Charliemopps (1157495) | about 9 months ago | (#45969649)

Everyones screaming at the Judges, but read what they're saying:
"the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation."

REALLY read that. I read it as saying "You're trying to send an advocate to make this appear like it's an adversarial process. But it's not. This will still be a rubber stamping process until you send in a REAL advocate."

i.e. If there are going to be reforms, then they need to be real. Reforms like this (that achieve nothing but make the people think somethings been done) will only increase their workload. With no added benefit to the target of the NSA.

Re:Hold on there... (4, Informative)

Astro Dr Dave (787433) | about 9 months ago | (#45970209)

The judges know that a true adversarial process is not on the table - and never will be. They aren't calling for real reform. Mostly they are worried about their workload. This is all spelled out in the actual document which you can get here [senate.gov] They don't want an advocate or adversarial process, because it wouldn't change anything.

Here is the full quote: "The participation of a privacy advocate is unnecessary and could prove counterproductive in the vast majority of FISA matters, which involve the application of a probable cause or other factual standard to case-specific facts and typically implicate the privacy interests of few persons other than the specific target. Given the nature of FISA proceedings, the participation of an advocate would neither create a truly adversarial process nor constructively assist the Court in assessing the facts, as the advocate would be unable to communicate with the target or conduct an independent investigation. Advocate involvement in run-of-the-mill FISA matters would substantially hamper the work of the Courts without providing any commensurate benefit in terms of privacy protection or otherwise; indeed, such pervasive participation could actually undermine the Courts' ability to receive complete and accurate information on the matters before them."

Of course, we already know the courts are not getting complete and accurate information, and they rubber-stamp orders anyway.

sThi7? (-1)

Anonymous Coward | about 9 months ago | (#45969673)

Your rights vs a 'component' and 'seam' (2)

AHuxley (892839) | about 9 months ago | (#45969691)

http://www.theguardian.com/world/2014/jan/10/nsa-mass-surveillance-powers-john-inglis-npr [theguardian.com]
http://investigations.nbcnews.com/_news/2013/12/19/21975158-nsa-program-stopped-no-terror-attacks-says-white-house-panel-member?lite [nbcnews.com]
"“...there has been no instance in which NSA could say with confidence that the outcome [of a terror investigation] would have been any different” without the program."
Welcome to a world where a vast domestic surveillance system is rubber stamped and oversight is tame.

must be a good idea (1)

umghhh (965931) | about 9 months ago | (#45969753)

if they rejected it so strongly

No collection on Americans without a warrant ! (1)

Anonymous Coward | about 9 months ago | (#45969757)

All this FISA advocate stuff, and Obama rhetoric is a distraction, tinkering around the edges.

There should be NO collection of phone calls, e-mails, meta data, cell phone locations of Americans without a warrant from a judge, based on evidence. The fourth amendment is very clear on how warrants are to be justified. They must be specific against a person or thing to be investigated, not general warrants that the founders fought against King George to ban.

If these dam NSA snoopers would spend their billions on regular development of human sources, informants, and good old detective work, it is possible that terrorist attacks could be discovered and stopped. Collecting everything, and trying to sort through it- NOT. There are NO cases where NSA snooping has stopped terrorist plots, not a single instance. The recent Boston bombing is good proof of how ineffective mass surveillance is at catching terrorists. It is about controlling the population, suppressing dissent, and keeping politicians (political opponents) under watch so they can be controlled.

And congress needs to absolutely forbid weakening of commercial security and encryption technology, the hole it opens up for criminals to exploit is too big. There is little coverage of this last point in the popular press, probably too comples for the average Joe to understand.

Not just Americans (1)

Anonymous Coward | about 9 months ago | (#45970255)

I agree, but please note that the Fourth Amendment says nothing about "Americans" or "citizens". It says "the people".

Your argument applies just as much, just as strongly, to surveillance on an Egyptian or a Korean or an Iranian as on an American.

Think it through.

Re:Not just Americans (0)

Anonymous Coward | about 9 months ago | (#45970535)

Yup, thought it through.

The NSA's mission IS to spy on foreigners around the world and protect American security.

The constitution does say the people, but that means the people of the United states.
While it would be nice not to spy on foreigners around the world, it may be necessary, and the US constitution does not protect all people in the world.

The founder fought for these rights, and they don't come free to other people in the world.

Why have FISA court at all (1)

Dan667 (564390) | about 9 months ago | (#45969803)

I have yet to hear one reasonable argument why the FISA court is needed at all. Get rid of it.

Re:Why have FISA court at all (1)

AHuxley (892839) | about 9 months ago | (#45970063)

It came out of the http://en.wikipedia.org/wiki/Church_Committee [wikipedia.org] be the one place to ensure US "Foreign" intelligence collection would never give US political cover for a vast domestic surveillance program again.
There was to be oversight and reviews... but that just turned into a sealed show and tell show on any politicians 'hot' topics.
Now we have the sock puppets needing many new color of law paragraphs to try to legally fake past The Fourth Amendment:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

uncle sam to legalize POT (Personal Open Terminal) (0)

Anonymous Coward | about 9 months ago | (#45969807)

& reefer too. if you cannot trick them form a joint committee to smoke them out from their hovels which they are not hiding in.

Disagree, but they have a point (5, Insightful)

MobyDisk (75490) | about 9 months ago | (#45969809)

While the judges are clearly biased, there is value in their point:

the participation of an advocate would neither create a truly adversarial process nor constructively assist the courts in assessing the facts

This is true: How can you have an adversarial process when the adversary isn't allowed to know that anything is happening? But there still needs to be some adversary. The problem is bigger than this though.

Ultimately, this court isn't even a court by any modern definition. No adversarial process. The judges are appointed without any confirmation or oversight [wikipedia.org] . There is no appeals court. [slashdot.org] The NSA lies to the judges anyway. [slashdot.org] And the department that oversees them ignores complaints by the judges. [usatoday.com]

How is this a court at all?

Re:Disagree, but they have a point (0)

Anonymous Coward | about 9 months ago | (#45970071)

It's more like a basketball court, being played on by the Harlem Globetrotters, in clown suits, and Jim Carrey as the ref

Re:Disagree, but they have a point (2)

dkf (304284) | about 9 months ago | (#45970123)

How is this a court at all?

By the power of the large, hopping marsupials imported from our good allies in Australia!

Why do they need 11 judges? (2)

bruce_the_moose (621423) | about 9 months ago | (#45969829)

Couldn't a monkey with a rubber stamp do the same job for a whole lot less?

Re:Why do they need 11 judges? (1)

AHuxley (892839) | about 9 months ago | (#45970229)

It was seven district judges from seven circuits named by the Chief Justice of the United States to serve a maximum of 7 years.
The U.S.A. Patriot Act (section 208) changed it to eleven and added "of whom no fewer than 3 shall reside within 20 miles of the District of Columbia"

Snowden for President! (5, Insightful)

Bootsy (33005) | about 9 months ago | (#45969855)

Snowden for President!

Insignificant (5, Insightful)

PopeRatzo (965947) | about 9 months ago | (#45969859)

Who cares what the FISA judges think about the reforms? I mean, they're not the boss of the government.

This notion that there is some widespread fear in the government of how agencies and entities will react to changes in he surveillance regime are starting to get a little alarming. If you look at the NYTimes story here: http://t.co/lSEb6vWXSi [t.co] , you will see the phrase, "backlash from national security agencies" in regard to reforms to surveillance. Who are they that now elected officials, who are charged with oversight over these agencies, have to worry about intelligence agencies' "backlash"? There have been several other stories recently that have mentioned similar "consequences" from the agencies if the scope or powers of those agencies were to be limited in any way.

I guess that tells us who's really in charge.

I'm telling you, unless we can figure out a way to chop this surveillance regime down to size, and quick, there is absolutely no chance that any other national problem can ever be fixed in any significant way. Not the economy, not security, not social problems, not anything. When Americans finally internalize the fact that they are always being watched and that our own security agencies view them as a threat, there will be a sickness over the American people like none we have ever seen before.

To this day, people from places like East Germany and other surveillance states have it in the back of their heads that there is always someone watching. As the husband of a woman from Eastern Europe, I know this to be true from my experience with family and friends. Once you have Big Brother in your head, he never goes away, maybe not for generations.

I would absolutely rather take my chances with the terrorists than see the US go on this way much longer.

politics vs politicians (1)

BringsApples (3418089) | about 9 months ago | (#45969949)

There is no political solution for politicians. They're simply men ('men' as in men and women), and cannot be trusted to do what's right over what they wish, anymore than any other men. When the terrorists take over, they'll be dressed as nice businessmen, and will be heavily involved in the political scene. Perhaps this has already happened, as fear is the governing body's tool of the day.

Don't be worried folks, this shit'll be over before you know it.

Kangaroo rubber stamp-court (2)

Subm (79417) | about 9 months ago | (#45969975)

They are a kangaroo rubber-stamp court objecting to doing other than what they were appointed to do, which is to unthinkingly say yes. I can't imagine anyone with any pride in their country feeling anything other than overwhelming shame and disgust for their role in this banana-republic activity. Except self-interested cronies.

Since they could be replaced by a rubber stamp that said "Yes" with nearly no change to what the court does except to save probably tens of millions of dollars per year, they're probably concerned about losing their jobs.

Can you imagine what Jefferson or John Adams would say about this possibly unconstitutional corruption of justice? This court could scarcely be farther from their ideals. Of course they're united in opposition. They're united because their bosses gave them all the same instructions. Why would we expect any one of them to say or act independently of anyone else?

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