Here's a zinger:<p><i>The officials said one central concept connects a number of the court’s opinions. The judges have concluded that the mere collection of enormous volumes of “metadata” — facts like the time of phone calls and the numbers dialed, but not the content of conversations — does not violate the Fourth Amendment, as long as the government establishes a valid reason under national security regulations before taking the next step of actually examining the contents of an American’s communications.</i><p><i>This concept is rooted partly in the “special needs” provision the court has embraced. “The basic idea is that it’s O.K. to create this huge pond of data,” a third official said, “but you have to establish a reason to stick your pole in the water and start fishing.”</i>
There can be no "consent of the governed" when "We the People" are unaware of the actions which our elected, as well as non-elected, representatives perpetrate in Our name.<p>___Edit__<p>Yes, "unaware," as in "We the People" are perpetually "unaware" of what goes on in <i>secret</i> court proceedings.
> In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.<p>This is political kabuki designed to make us think we have a representative government. We don't. We have an oligarchy composed of financial/industrial/military interests (as all oligarchies are) that runs the intelligence agencies of the government it owns.<p>The fact of the matter is that the NSA has always considered itself exempt from the law and the Constitution:<p>> "NSA does not have a statutory charter; its operational responsibilities are set forth exclusively in executive directives first issued in the 1950s. One of the questions which the Senate asked the Committee to consider was the "need for specific legislative authority to govern the operations of...the National Security Agency."<p>> According to NSA's General Counsel, no existing statutes control, limit, or define the signals intelligence activities of NSA. Further, the General Counsel asserts that the Fourth Amendment does not apply to NSA's interception of Americans' international communications for foreign intelligence purposes."<p>> <a href="http://www.aarclibrary.org/publib/church/reports/book3/pdf/ChurchB3_10_NSA.pdf" rel="nofollow">http://www.aarclibrary.org/publib/church/reports/book3/pdf/C...</a>
Excellent reporting by Eric Lichtblau based on "current and former officials familiar with the court’s classified decisions". One key point:<p><i>In one of the court’s most important decisions, the judges have expanded the use in terrorism cases of a legal principle known as the “special needs” doctrine and carved out an exception to the Fourth Amendment’s requirement of a warrant for searches and seizures, the officials said.</i><p><i>The special needs doctrine was originally established in 1989 by the Supreme Court in a ruling allowing the drug testing of railway workers, finding that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger. Applying that concept more broadly, the FISA judges have ruled that the N.S.A.’s collection and examination of Americans’ communications data to track possible terrorists does not run afoul of the Fourth Amendment, the officials said.</i>
"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings." -- John F. Kennedy
Imagine you work at the NSA. Your boss comes through the door and says, "Hey, we just got approval to store the communications of everyone everywhere. We need the be able to cite credible suspicion before we can look at Americans' communications, though. What can you do for me?"<p>"Wait, we can intercept and store all the communications?"<p>"Yep, all of them."<p>"Because they might include ones that present a threat?"<p>"Yeah, that's it."<p>"OK. Well, what if we could narrow it down? What if we implemented a system to only scrutinize communications we thought were likely to be threats. That would be better, right?"<p>"Where are you going with this?"<p>"Well, we're already collecting everything, right? What if we went just a teensy bit further? What if we just added a step where we did semantic analysis of everything we collect? That way, we'd narrow down the stuff we were actually, you know, looking at to stuff we were already pretty sure was important."<p>"That's a GREAT idea!"<p>"Wait, I'm not finished. We could narrow it down even more if we maintained a graph of communications between everyone we know about. We want to affect the minimum number of people possible, right?"<p>"Well, we're worried about lone wolves too..."<p>"That's fine. We can get business records through the PATRIOT Act. We can make this a really fine-grained test. We can look for suspicious purchase patterns, medical conditions, attempts to avoid detection, you name it. What could possibly go wrong?"
<i>In this case, however, a little-noticed provision in a 2008 law, expanding the definition of “foreign intelligence” to include “weapons of mass destruction,” was used to justify access to the message.<p>The court’s use of that language has allowed intelligence officials to get wider access to data and communication...</i><p>That is really, really scary when you include the fact that the term "weapon of mass destruction" has been so watered down as to now include even a freakin potato gun.<p><a href="http://www.pri.org/stories/politics-society/government/expansive-definition-for-weapon-of-mass-destruction-gives-prosecutors-the-power-13635.html" rel="nofollow">http://www.pri.org/stories/politics-society/government/expan...</a>
I do certification of high risk industrial installations for a living, and this story reminded me of one I heard about the Japanese Fukushima disaster.<p>One of the guys who does certification over there did some digging and found out that they had 3 sets of operating procedures for the plant: the independently reviewed and certified ones which would provide a high level of safe operation; the ones they didn't show anyone which was how they supposedly operated the plant day to day (cutting corners); and then the way they <i>actually</i> operated the plant, which was even less safe.<p>When I read stories about the FISA, they sound shocking, but they also sound a lot like Fukushima's 'second level' operating procedures. Bad, and an obvious sideshow, but not even close to what's <i>really</i> going on behind closed doors at the NSA.
> the court is creating a significant body of law without hearing from anyone outside the government<p>Legal precedents created by non-adversarial proceedings in a secret court are nothing less than terrifying.
Somehow I don't think the FISA court is fixing the problems it was created to fix. It seems to have been co-opted.<p>Hopefully, in something less than a decade, one of our legislators can find time in his busy money-raising schedule to discover how that happened. And then start a task-force to make meaningful recommendations.
In our country all laws have to be published in the "Staatsblad" (State-released paper/documents containing new businesses, laws, ...) So unless a law to allow secret laws was made we shouldn't have secret laws.<p>So that got me thinking, try outlawing secret laws ?
Unfortunately they do not need scrutiny from the public, these judges (supposedly) are experts in constitutional law and the public (according to law) does not have any say in it.