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Hullabaloo


Saturday, June 15, 2013

 
From the "Trust 'Em?" files: a federal judge says faith in judicial "oversight" is misplaced

by digby

This strikes me as, I don't know, important:
A retired federal judge warned Friday against blind faith in the secret court deciding the scope of U.S. government surveillance. During a panel discussion on constitutional privacy protection in the wake of a leaked Foreign Intelligence Surveillance Court decision that revealed widespread NSA data collection, U.S. District Judge Nancy Gertner stood up in the audience to counter the statements of conservative law professor Nathan Sales that secret surveillance requests are subject to meaningful judicial review. She cautioned: 
"As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced. 
Two reasons: One … The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said."
Gertner, now a professor at Harvard Law School who teaches criminal law and criminal procedure, was a civil rights and criminal defense lawyer before being confirmed to the federal bench in 1993. In an interview with ThinkProgress, Gertner explained that the selection process for the secret national security court formed in 1978 is more “anointment” than appointment, with the Chief Justice of the United States — now John G. Roberts — selecting from a pool of already-conservative federal judges those he thinks are most suited to decide national security cases in secret: 
"It’s an anointment process. It’s not a selection process. But you know, it’s not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And it’s a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion." 
Gertner, an attendee at the American Constitution Society’s national convention, stood up during a panel discussion to make her comment after Sales, a law professor at George Mason University, suggested that individuals have some protection from excessive government surveillance because the Internet Service Providers who field government requests for information have the opportunity to challenge those requests before the secret court. “This isn’t a a paper tiger,” he said. “This is a court that engages in judicial review.” 
Gertner urged the audience to be skeptical about the court’s oversight, both because of its severely conservative make-up, and its secrecy. The judge whose order was leaked by former NSA contractor Edward Snowden was Judge Roger Vinson, who authored the error-riddled federal court decision striking down the Affordable Care Act that even his fellow conservatives rejected. 
Gertner also questioned the need for a secret court, noting that national security protections exist within the civilian court system: 
"I’m very troubled by that. When you get cases in court, in regular civilian court that have national security issues that have classified information, we developed a process whereby the parties would develop security clearances and it could be presented to the court without it being disclosed to anyone else. It is not entirely clear to me why a civilian court with those protections that is otherwise transparent couldn’t do the job. That’s the way we did it before. Then we moved to this national security court. The notion that we have to have a conversation about major incursions on civil liberties and that we have step back and say we don’t really know, we haven’t seen the standards, we haven’t seen the opinions is extraordinary troubling in a democracy."

The FISA court has rejected only .03 of all the requests it's had. I grant that in principle it is slightly better than the warrantless surveillance during the Bush years but in practice it seems to just be a rubber stamp. And anyway, secret courts are hardly the proper way to run a democracy, particularly when the government has decided it needs to monitor its own citizens through a process designed for foreign surveillance (which is the most confounding thing about all this, in my opinion.)

Again, oversight is not enough --- and will never be fully trustworthy. With a government that has the vast police powers and surveillance capability of the most militarized nation on earth, it's probably a good idea to have as many checks on its power as we can.

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