Monday, March 3, 2014

Curtailing Big Brother

Since this chart was created [2010], the number of annual applications has risen above the 2500 mark

Click here for related article [Federation of American Scientists (FAS.org)]

This post is designed to keep interested parties aware of changes in our government's system of monitoring its citizens, and protecting us from all those terrorist [i.e., US Citizen] threats.

Today, we're reviewing and commenting on changes to the composition of the Foreign Intelligence Surveillance Court [FISC], created via the 1978 Foreign Intelligence Surveillance Act [FISA].

As a result of Edward Snowden's revelations on NSA surveillance abuses, and FAS's disclosure of the details of FISC's rubber stamping of thousands of DOJ requests [note the image heading this blog post], Congress is rewriting the procedural and operational rules governing the FISC.

The judicial issue at hand is that
"...the FISC operates largely in secret and in a non-adversarial manner with the government as the only party ... [to a] non-adversarial process [which] prevents the court from hearing opposing viewpoints on difficult legal issues facing the court."

Congressional changes proposed include:

A.  A specialized Article III Court that hears applications and grants orders approving certain foreign intelligence gathering activities
B.  A Foreign Intelligence Surveillance Court of Review - to evaluate and review FISC rulings.
C.  That the FISC sit en banc - i.e., all 11 judges would review applications when making 'significant' interpretations of foreign intelligence statutes.
D.  Alter the 'voting rules' of either the FISC when sitting en banc or the FIS Court of Review to create a higher threshold of government surveillance.

Changing the Court Composition:


US Supreme Court Chief Justice Roberts has appointed two promising new members to the Foreign Intelligence Surveillance Court for seven year terms:



A.  James E Boasberg of the DC Federal District Court
     1) He replaces Presiding Judge Reggie Walton
     2) Background:
          a) Law degree from Yale - 1990
          b) Graduated from Oxford -1986
          c) Clerked for Judge Nelson on 9th Circuit US Court
              of Appeals 
          d) Litigation attorney in private practice: 1991 - 1996
          e) Assistant US Attorney in Washington, DC specializing
              in homicide prosecutions
          f)  Associate Judge - DC Superior Court.
          g) Notable: In CEI v. EPA, ruled against CEI's FOIA request for
              disclosure of secondary secret emails to disguise its conduct
              of business.

B.  Richard C Tallman of the 9th Circuit Court of Appeals
      1)  He replaces Judge Morris S. Arnold
      2)  Background:
            a) Law degree from Northwestern University
            b) Clerked for Judge Sharp on US District Court
                 for the Western District of Washington
            c)  Assistant US Attorney in Seattle, Washington
            d) Private practice specializing in White-Collar
                 criminal defense
            e)  Notable: in Bull v San Francisco, he dissented from
                 majority opinion which endorsed SF jail procedure of
                 strip searching those charged with minor, non-violent offenses;
                 Tallman opposed as it violated the Unreasonable Search clause of 
                  the Fourth Amendment.

Other members of the FISC [with end of term noted]:
             a) Rosemary Collyer            [2020]
             b) Raymond Dearie             [2019]
             c) Claire Eagan                     [2019]
             d) Martin Feldman              [2017]
             e) Susan Webber Wright    [2016]
             f)  James Zagel                     [2008]
             g) Dennis Saylor                  [2018]
             h) Thomas Hogan               [2016]
             i)  Mary McLaughlin            [2015]


Background:

The FISC was created as a safeguard to review special operational requests to by-pass Constitutional restrictions on surveillance of US citizens.  As you can see from the chart above, the number of requests was relatively modest until 2001.  During that period, requests were reviewed, evaluated, and acted on, based on their merit.  Most were denied for lack of substance.  Those that were granted were well-documented and proved to the Court that there was a definitive need for the action.

But, then came 9/11, when all the rules were tossed out to protect us from terrorists, and George W Bush [whom I fully supported] signed the Patriot Act -- which eroded the Constitution; that was followed by the Protect America Act of 2007, and in 2008, FISA was amended to increase the secrecy of the FIS Court process; this was followed by the National Defense Authorization Act, which, when combined with the preceding Acts created in response to 9/11, shredded the Constitution's guarantees of personal rights and freedoms, and unleashed the demons of oppressive government and Big Brother

And what politician dared to vote against legislation with the labels of Patriot and National Defense, and Protect America!

The Court was then flooded with requests which absolutely, positively HAD to be acted on IMMEDIATELY lest another attack on the public be missed and end in catastrophe.  Both the Law Enforcement and the Intelligence Communities arrived with stacks of requests, the bearers panting that terrorists were en-route, ready to destroy civilization.
I can validate 100 requests an hour with my rubber stamp!


The Court was overwhelmed, and the process eventually became rubber stamping.

The Court was degraded, eventually to be headed by the malleable Judge Reggie Walton, a jurist of mediocre credentials, selected in 2007 because of his "tough on crime" attitude.

But perhaps it was because, according to one wag, he could be persuaded to endorse a search warrant scribbled in crayon on toilet paper.

[But, we don't believe that.]




The FISA and the FISC were created with the best intentions, to address a perceived threat to national security, ostensibly because only extreme measures could counter the extreme - albeit ephemeral threat.  But, the Court has been unreasonable in granting virtually unlimited access to all of America's private information, and denying public access to just what our government has collected, and continues to collect [e.g., Google's battle with the FISC to deny access to its user data.]

I take issue with the Court proceedings, particularly during the current Administration.

I feel competent to criticize since I've been part of the original process;  I directed the operations of the DOD Clandestine Service [DCS] from 1984 - 1990, the objectives of which included collection operations against threats to national security, to include  terrorist elements around the world. 

[To clarify, neither JimmyBob Clapper nor Mikey Flynn created the DOD Clandestine Service, even though that's their claim.]

Based on our experience in the DCS, I can assure you, AND Congress, that there are very few, if any, operational circumstances which justify the rubber stamping of surveillance or the spying requests by the Department of Justice or any element of the Intelligence Community, to include the NSA.

Back then, my legal staff consisted of a retired federal judge and three federal attorneys who reviewed our operational plans before they were signed into action and funded.  The authorized plans covered a broad range of anticipated contingencies, but occasionally, operational issues arose necessitating questionable actions in need of immediate review due to exigent circumstances; one such incident involved the news that a US Military officer had been targeted for assassination and we needed to employ all surveillance assets available to protect him.

For such exigent situations, I had 24/7 access to the US Assistant Attorney General, who could authorize an operation responding to an imminent threat to national security.  These operations included NSA coordination and support; the basic caveat was that there could be no surveillance of US citizens without a clear and justifiable warrant.  If such were the case, the Assistant Attorney General would either directly authorize the operation, or, as necessary, coordinate by phone with the FISC and then grant us authorization to proceed. Such events rarely took more than 30 minutes, although we did have to provide detailed documentation after the fact.

We dealt with Intelligence collection operations as critical, or more critical than those the Intelligence Community faces today; they were fully functional and fully compliant with the existing Congressional restrictions imposed by the Church Committee back in 1975 -- the essence of which was:

                                           DO NOT SPY ON US CITIZENS!

Since 9/11, the very worst elements of the Intelligence Community took control and whispered in Congress' ear the need to destroy the Constitution to protect National Security.  The Patriot Act was strengthened with the provisions of the National Defense Authorization Act [NDAA] which was subsequently endorsed again by Congress in 2013, and again in 2014.

My emphasis to Congress is that the Law Enforcement and Intelligence Communities can get along quite well following the standard warrant process.  Every request to the FISC should be scrutinized  carefully, and the need for a hasty turn-around is rare.  The new appointees to the FISC bench seem quite well qualified, and the new legislation proposed to adjust the FISA/FISC procedures seems to be on the right track.

My emphasis to readers is that they urge their elected representatives to enact these proposed reforms so that we can regain the Constitutional Rights our Forefathers established for us.