
For secretive surveillance court, rare scrutiny in wake of NSA leaks - Libertatea
http://www.washingtonpost.com/politics/for-secretive-surveillance-court-rare-scrutiny-in-wake-of-nsa-leaks/2013/06/22/df9eaae6-d9fa-11e2-a016-92547bf094cc_story.html?tid=rssfeed
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jivatmanx
"Critics, including some with knowledge of the court’s internal operations,
say the court has undergone a disturbing shift. It was created in 1978 to
handle routine surveillance warrants, but these critics say it is now issuing
complex, classified, Supreme Court-style rulings that are quietly expanding
the government’s reach into the private lives of unwitting Americans."...

"Judges generally confer only with government lawyers, and out of public view.
Yet the judges have the power to interpret the Constitution and set long-
lasting and far-reaching precedent on matters involving Americans’ rights to
privacy and due process under the Fourth Amendment. And this fast-growing body
of law is almost entirely out of view of legal scholars and the public. Most
Americans do not have access to the judiciary’s full interpretation of the
Constitution on matters of surveillance, search and seizure when it comes to
snooping for terrorist plots — and are limited in their ability to challenge
it"

"The judges that are assigned to this court are judges that are not likely to
rock the boat,” said Nancy Gertner, a former federal judge from Massachusetts
who teaches at Harvard Law School. Gertner, a former defense and civil rights
lawyer named to the bench by Democrat Bill Clinton, added: “All of the
structural pressures that keep a judge independent are missing there. It’s
­one-sided, secret, and the judges are chosen in a selection process by one
man."

I've never been particularly fond of Marbury vs. Madison (I'm not sure it was
wise to trash the Common Law system), but if this is true it's potentially in
violation of that precedent, by, apparently, creating a rival supreme court,
whose rulings are secret and which is stacked with yes-men by the executive.

P.S. This story has restored some of my faith in WAPO, which has been
questioned by some of their actions in this story.

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mpyne
I'm hoping that this will all act as an incitement point to finally open up
transparency on the aspects of the court and NSL/FISA warrants in general that
don't actually contribute to national security.

I understand and agree completely with the need for secrecy and OPSEC but
that's no reason to make these kinds of gag orders essentially permanent. Even
the Navy lets their sailors discuss ship movements in/out of homeports once
they've occurred.

Likewise it makes sense to keep detailed classifications on what's
interceptable secret. But if a portion of the underlying law is
Unconstitutional then that needs to be public. Yes, it makes it more difficult
to do the job but that's the price we pay for living in a free society.

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senjmccarthy
The only way to know if a law is "constitutional" or not is to subject it to
challenge it in the (non-secret) court system.

If a law cannot be challenged because either its existence is secret or the
process of its enforcement is secret, or both, then we can never know whether
such a law is or is not constitutional.

I guess some in favor of the status quo would argue that sometimes scrutiny
(to use the word in the article's title) of laws and their enforcement is
imprudent? Because it threatens "national security"?

Should the public be permitted to scrutinize the laws that make what NSA is
doing "legal"? Why or why not?

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coldcode
The very idea of a secret law that cannot be challenged is certainly not what
the writers of the Constitution ever imagined. Once one law can be
successfully hidden from the people then in the future all laws will be
designed in the same way. At that point it no longer matters what we want or
what the Constitution says.

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bobroberts
So, the "court" hears only one argument, never any counter argument. I guess
it is no surprise they always vote in favor of the argument presented rather
the the argument never presented.

