
Secret Court's Redefinition of 'Relevant' Empowered Vast NSA Data-Gathering - Lightning
http://online.wsj.com/article_email/SB10001424127887323873904578571893758853344-lMyQjAxMTAzMDAwODEwNDgyWj.html
======
rayiner
The article is methodologically misguided on a key point:

> The history of the word 'relevant' is key to understanding that passage. The
> Supreme Court in 1991 said things are 'relevant' if there is a 'reasonable
> possibility' that they will produce information related to the subject of
> the investigation. In criminal cases, courts previously have found that very
> large sets of information didn't meet the relevance standard because
> significant portions—innocent people's information—wouldn't be pertinent.

As a general rule, words have to be interpreted in the context of the laws
that use them, because the same word can have different connotations in
different laws. To use a programming analogy, talking about what "relevant"
means in the law is like talking about what "num_files" means in programming.
You can get a very general idea from the text, but you don't really know what
the term means without looking at the rest of the source.

"Relevant" means different things in the law. The article cites the narrow
definition used in criminal search cases, but the Patriot Act is about foreign
intelligence, not criminal prosecutions. In the law of evidence, for example,
"relevant" is extremely broad: anything that could change whether some
material fact is more or less likely to be true. You can't take the Supreme
Court's interpretation of "relevant" in one case and apply it to the
interpretation of the Patriot Act, just as you can't take a variable name in
one program and assume it means the same thing in another program.

~~~
rhizome
_To use a programming analogy, talking about what "relevant" means in the law
is like talking about what "num_files" means in programming._

That's a highly permissive interpretation, though one that does allow for the
gutting and redefinition of the word. I'm not sure I'd go so far as to say
legal terms are as fundamentally meaningless as variables, mere containers for
whatever the practitioner desires, though.

Can "relevant" be defined as null?

~~~
tptacek
It's easy to come to the conclusion that a big part of what's happening the
news media is that lay journalists are each coming to their own idiosyncratic
and incompatible conclusions, often from first principles, about how the law
operates. "What I've discerned," you imagine them thinking, "is that SCOTUS
first issues rulings defining what words like 'relevant' mean, and then the
principle of _stare decisis_ give that definition force going forward."

Of course that's _not at all_ what happens. To see why, you merely need to
look at the different ways the word "relevant" are routinely used in law;
relevance is germane to hiring decisions, to college admissions, to
admissibility of evidence in civil cases, and to the commerce powers of the
federal government. Clearly all these concepts aren't regulated by _Terry v
Ohio_!

(It is, as Kerr points out, very possible that the courts are relying on
_Terry_ in this case. But if they are, what's notable is the application of
_Terry_ at all, not a change in the meaning of _Terry_.)

~~~
rhizome
It's easy for self-styled intellectuals to focus on the most complicated
forces in a topic, so it makes sense that they would miss the forest for the
trees by focusing on the law in this case. It allows a tangled web of objects
to be connected in order to allow pre-existing preferences to be restyled into
a dry logic, like postmodern theory or a positive Michael Buble review.

The word "relevant" is used in so many different ways because it's an
adjective. You don't say "look at how many different meanings there are for
the word, 'green': green cars, green makeup, green grass." The word,
"relevant" is the same way, except that it takes two nouns or noun phrases,
necessarily, because the only meaning of the word is to describe that they are
connected, that they are germane to _each other_.

"[R]elevance is germane to college admissions" is a meaningless phrase because
"relevant" and "germane" are somewhat synonyms. "Relevance is relevant to
evidentiary rules." OK.

The context here is an argument of what the terms of relationship are and
whether and what _those_ have been changed to. The Terry test speaks to what
the surveillance is relevant to. It's not a change in the meaning of Terry,
it's a change in the relationship of the surveillance to a particular
standard. It could be Terry, it could be something else, but at the end of the
day, in the equation "X is relevant to Y," Y is the thing that's changing (or
missing, if you follow emptywheel).

~~~
tptacek
I think I get what you're saying; you don't care what the law says, because
you believe surveillance on the NSA's scale is wrong. I'm not sure who you
think you're arguing with.

You indulge the nitty-gritty detail of the topic I'm discussing anyways, in
order to dismiss what I said. But your dismissal doesn't make any sense; you
appear incapable of comprehending that there's a second order of relevance at
play in cases determining what "relevant" means to different circumstances. Is
the color of someone's hair relevant to predicting their performance on a job?
Objection! Requires court to recursively evaluate concept of relevance!
Overruled.

I don't know who you're referring to when you point to "self-styled
intellectuals", but if it's a participant on this thread, I'd note that nobody
here has taken to calling _you_ names.

~~~
rhizome
You're arguing for sophistry in service of authority, in bad faith I might
add. You know what my motivations are just like you do for "lay journalists,"
but at least I engaged the argument in detail and with respect to your terms.

And that's a pretty funny implication: "I only called _other_ people names." I
guess I should apologize if my first paragraph broke your brain, it was the
last part I wrote and I almost didn't include it.

~~~
mpyne
The same 'sophistry' that might serve authority here may be the sophistry that
goes against authority elsewhere in the legal framework, so I'd be careful
about drawing additional inferences from what tptacek has written. He's
describing how the law _actually is_ , whether you agree with it or not. A
notable example is "treason", which has a very precise definition that is not
friendly to authority.

Have you read legal code, by any chance? Often modern laws include at the
beginning of each section a wordy definition of what each term _actually
means_ , despite each of those terms having perfectly good and reasonable
meanings in the common vernacular. It is later in accordance with those terms
that the court interprets the law (assuming, of course, that the law is not
deemed unconstitutional).

Given that plethora of examples of this in the law (and case law) I don't see
how pointing out that legal principles are being misapplied is somehow
subservient to authority. The journalists have tried to explain things in the
context of legal principles and not reason, so they should be evaluated on
legal principles. Otherwise we risk people trying to rely on that flawed logic
in the courts in good faith, with nothing to show for it, when they should
have been taking action that had a shot at success.

~~~
rhizome
Huh? Sorry, while I should probably just bow out, I have no idea what the
substance here is. It reads as metacommentary to me.

~~~
mpyne
To rephrase, the article seems written from the idea that the journalists have
found some innovative change in how the law was applied by the FISC. But it's
not really innovative since the journalists didn't understand the reason why
'relevant' in this context would not be the same 'relevant' from the Supreme
Court case they were discussing. They are trying to play law and messed it up,
must like the first time I used Python I messed it up because I didn't realize
that it's pointers, pointers everywehre.

So PRISM and all the rest may very well be bullshit, but it will be because
it's actually bullshit and not because (in this case) some reporters have
spotted some glaring bright-line change instituted by a panel of 12 judges.

The risk with these types of arguments is that the technically skilled
opponent points out the flaw in your reasoning and derails the whole thing,
even though your overall point may have actually been valid.

In this case, the government can go 'No conspiracy _here_ , the reporters
didn't understand that the definition of relevance for these cases comes from
<whatever case law>, so all hunky-dory now, eh. Oh look, Egypt!'

------
motters
The process of law should not be occult. It's hard to imagine how a secret
court could do anything other than pretend to carry out a legal process. For
law to be law it needs to be at least in principle knowable by the people to
whom it applies.

~~~
rayiner
I agree in principle, but I'm not sure the principle is applicable in this
context. The FISC does not make any law binding on individuals. The FISC only
guides the DOJ and NSA's investigatory discretion. The people charged with
following its interpretations are in the DOJ and NSA, and they know what those
interpretations are.

~~~
IsThisObvious
Except that, you know, this effectively removes any citizen oversight, which
is core to democratic societies.

~~~
tptacek
No it doesn't. The FISA court is a civilian body, the DNI is a civilian
position, and the DNI serves at the pleasure of the civilian President. Not
only that, but the FISA process isn't emergent from Article III of the
Constitution, but is rather an instrument of Congress which can be reformed
entirely by civilian legislative acts by representatives directly elected by
the population. There is no truth to the idea that NSA lacks civilian
oversight.

The point you want to be making is about transparency, and about _general
citizen_ oversight. The distinction is extremely important; for instance,
random citizens of the US have no direct oversight over military operations,
never have, and never will. If you make the argument about civilian oversight,
you've already lost, because the intelligence system does in fact have
civilian oversight; it's just not the oversight you want.

~~~
fnordfnordfnord
>The FISA court is a civilian body

Mostly conservative republicans, appointed by a conservative supreme Justice.
But civilians, sure.

>the DNI is a civilian position,

Every DNI there has ever been has either been a spook or a former high-ranking
military officer; except Negroponte, who was, weak sauce.

>There is no truth to the idea that NSA lacks civilian oversight.

There is no truth to the _fact_ that the NSA lacks civilian oversight.

As to the _idea_ that the NSA/FISC lacks civilian oversight? There's no reason
to believe that any meaningful oversight exists at all. For one example,
consider these recent comments by U.S. District Judge Nancy Gertner

 _" As a former Article III judge, I can tell you that your faith in the FISA
Court is dramatically misplaced."_

~~~
tptacek
I have no faith in the FISA court, but I have a different diagnosis than you
do about why the process isn't trustworthy, and my prescription for solving
the problem doesn't have anything to do with strengthening the FISC.

~~~
fnordfnordfnord
>my prescription for solving the problem doesn't have anything to do with
strengthening the FISC.

I'm glad we have some common ground there.

------
jdp23
The sourcing is "current and former administration and congressional
officials". As with the New York Times article on the FISA Court's secret body
of law, it's interesting to me that people are discussing this with the press.
Are the current administration officials talking with permission?

 _In classified orders starting in the mid-2000s, the court accepted that
"relevant" could be broadened to permit an entire database of records on
millions of people, in contrast to a more conservative interpretation widely
applied in criminal cases, in which only some of those records would likely be
allowed, according to people familiar with the ruling...._

 _Two senators on the Intelligence Committee, Ron Wyden (D., Ore.) and Mark
Udall (D., Colo.), have argued repeatedly that there was a "secret
interpretation" of the Patriot Act. The senators' offices tell the Journal
that this new interpretation of the word "relevant" is what they meant._

~~~
ihsw
Some congressional representatives are working hard to put an end to mass-
surveillance programs, however their options are limited to talking to the
media. Their Senate votes have to follow the party line, otherwise they risk
retaliation against their political careers.

~~~
jdp23
You're right that Wyden and Udall (and earlier Feingold) have been working
hard on this, and have repeatedly expressed frustration about what they can't
discuss. So it's good to see their offices now feel they can confirm that this
is what they were getting at. But what I was calling attention to is the
"current and former administration officials", similar to Eric Lichtblau's NY
Times description of the people who had seen the FISA court orders. If they're
talking with permission, it's a decision by the administration to have a
little more transparency (either as spin or because they really believe their
rhetoric that the American people will approve once they have the facts). If
not, then it's new people taking whistleblower-like actions. Either way,
interesting.

EDIT: Orin Kerr speculated about Lichtblau's story:

 _I would guess that this leak coming from “current and former officials” is
an authorized leak designed to see if revealing some information will take the
pressure off to reveal more. If I’m right, we’ll see if it works, or if this
leak only creates more pressure to release the opinions or at least reveal
more about them._

[http://www.volokh.com/2013/07/07/hints-and-questions-
about-t...](http://www.volokh.com/2013/07/07/hints-and-questions-about-the-
secret-fourth-amendment-rulings-of-the-fisa-court/)

~~~
roc
"anonymous leaks" are not transparency.

------
coldcode
What's relevant is that we shouldn't have secret courts deciding on secret
laws. Our legal system should be relevant to We The People and our needs.

------
Lagged2Death
_The history of the word "relevant" is key to understanding that passage. The
Supreme Court in 1991 said things are "relevant" if there is a "reasonable
possibility" that they will produce information related to the subject of the
investigation. In criminal cases, courts previously have found that very large
sets of information didn't meet the relevance standard because significant
portions—innocent people's information—wouldn't be pertinent. But the Foreign
Intelligence Surveillance Court, FISC, has developed separate precedents,
centered on the idea that investigations to prevent national-security threats
are different from ordinary criminal cases._

It is completely absurd to suppose that even the most serious terror attacks
in history (like the 9/11 attack) pose any threat to the continued existence
and authority of the US government. But that is exactly what this line of
reasoning assumes. That's what "national security threat" means.

We see this deliberate and erroneous conflation of "terrorism" and "national
security" again and again in government statements and policies, and the media
parrots it uncritically. Even if we believe that preventing terrorism is
extremely important, terror plots and acts of terror do not generally rise to
the level of "national security." Even if we accept the (extremely troubling)
legal principle that the constitution may be weakened or ignored in the case
of national security threats, that doesn't mean we should accept such
weakening in the quest to prevent terrorism.

~~~
mpyne
"National security" does not at all relate to "continued existence of the U.S.
government". The government will exist as long as the survivors allow it to.

On the contrary, it has to do with, literally, the security of the nation
itself. Nothing more or less.

We wouldn't wait to establish martial law if necessary during invasion until
the government were about to fall, after all. The Confederate invasion of
Pennsylvania that was stopped at Gettysburg is about as "national security" as
it got for the U.S., but that never directly threatened the U.S. government
itself.

~~~
Lagged2Death
_...the security of the nation itself. Nothing more or less._

"Nothing more or less" sounds so precise, but "the security of the nation" is
(like "national security") so vague as to be virtually meaningless without
elaboration. "National security" is often abused to mean pretty much whatever
the speaker wants it to mean. But it has always been _very_ much about the
continued existence and authority of the government.

"National security" as a concept and term didn't exist in the Civil War, but
the main threat to "national security" at the time was the attempted secession
of several states, which, had it succeeded, would have dramatically altered
the power, authority, and nature of the US government.

~~~
mpyne
> which, had it succeeded, would have dramatically altered the power,
> authority, and nature of the US government.

But it would not have altered the existence of that government. It would, on
the other hand, have threatened the republican form of government which the
Constitution requires the government to provide for its citizens in Article
IV.

Of course, I was speaking of actual _invasion_ anyways, not mere secession.

------
mtgx
There's no way the Supreme Court would arrive to the same conclusion and
definition of "relevant". This is why this stuff needs to be open to the
public.

~~~
tptacek
I have absolutely no idea what this comment is supposed to mean. If SCOTUS
ruled that any part of FISA was unconstitutional, that ruling would be
enforceable. Contrary to the popular misunderstanding of FISA as a shadow
court system, FISA enjoys literally zero immunity to judicial review. It's not
even a real court.

~~~
jdp23
Except, of course, that since it's not an adversarial proceeding there isn't
anybody to appeal the rulings.

~~~
tptacek
So? Most decisions the USG makes aren't adversarial, and yet SCOTUS routinely
intervenes in them. Again: the best way to think about FISA is to remember
that it's not a real court. It's an internal review board staffed by federal
judges who can issue warrants.

This point is, I think, frequently misinterpreted. It's not a defense of FISA.
FISA is a terrible system and a dereliction of the duties of Congress. But
it's not an intractable legal obstacle. The reason that it's difficult to
engage FISA in the Supreme Court isn't that FISA is shadowy, but rather that
the Constitution doesn't have much to say about foreign intelligence, and
there aren't a lot of opportunities for citizens to get their hooks into
FISA/NSA in order to get standing in court.

That would, of course, change rapidly if the FISA process started being used
to make criminal cases in the US.

~~~
apalmer
I would like clarification on the repeated statement that FISA is not a court
but instead a review board. I am not sure if you are speaking from your
educated interpretation, or something that is agreed upon as understood legal
'known'.

~~~
tptacek
I'm not a lawyer; I just play one on message boards. Also, while I think my
invocation of "review boards" is closer to the truth than the notion that the
FISC is a real court, you should know that the sentiment is disputed and
though I don't believe it's hyperbolic, some people do.

Courts of law established by the federal government must comply with Article
III of the US Constitution (state courts, which is where the overwhelming
majority of all controversies in the US are heard, don't need to be structured
along the lines of Article III, because the US Constitution defines the
federal government and not the state governments).

An Article III court is staffed with a federal judge appointed by the
President (as specified in Article II) with a lifetime tenure. Article III
courts "extend to all cases, in law and equity, arising under this
Constitution".

FISC court judges are appointed from the federal bench (they're judges
appointed by a President for a lifetime term on a federal court). But they
have a limited tenure on FISC --- seven years. And unlike Article III
appointments, FISC judges are appointed by the Chief Justice of the Supreme
Court. And, most importantly, FISC judges do not have power that extends to
all cases in law and equity under the Constitution. In fact, the only thing
they're empowered to do is authorizing FISA certifications.

Things that the FISC does not appear to be able to do: hear criminal cases,
sentence defendants, overturn laws, or establish precedents binding on any
other court.

There are other federal courts that aren't Article III courts --- bankruptcy
is one of them. Bankruptcy court judges have 14 year terms. Even though they
function as part of the district court system, the Judiciary is clear that
they aren't Article III judges. It's worth noting that Bankruptcy's bizarro
status in the court system has also created _stare decisis_ problems with the
rest of the court system. There's little reason to believe that FISA courts,
which are even further removed from Article III than Bankruptcy, would be more
judicially potent.

One dispute about the Constitutional status of FISC judges arises from case
law in the 1990s, wherein a defendant claimed that the FISC was a violation of
separation of powers. The appellate decision ruled that FISC judges weren't
_violating_ Article III by serving on the FISC, but I dispute that the
language in the decision dictates that those judges are in fact Article III
judges; I think it says merely that a federal judge doesn't violate Article
III by sitting on a body that is effectively an agent of Congress. If they are
Article III courts, the FISC is unconstitutional (in a technical way, not a
substantive way).

I'm a layperson summarizing independent research here, so I'd very much
appreciate an expert's opinion on this analysis.

~~~
cpleppert
>>And, most importantly, FISC judges do not have power that extends to all
cases in law and equity under the Constitution. In fact, the only thing
they're empowered to do is authorizing FISA certifications.

The FISA court has limited subject matter jurisdiction but I disagree that
limited subject matter jurisdiction is impossible for an article III court.
Article III says explicitly:"The judicial Power shall extend to all Cases, in
Law and Equity.." not that every article III court must be empowered to hear
an case whatsoever. I contend that this refers to the maximal subject matter
that any article III court may consider, not that every article III court must
be constitutionally empowered to consider any case that falls under Article
III sec 2 requirements.

If this was the case temporary judicial courts convened for a specific purpose
would be plainly unconstitutional. I am no aware of no one who considers the
Court of International Trade to be an article I court because of its limited
jurisdiction. It only hears customs cases by law(28 USC 255). This is exactly
analogous to the FISA Court/FISCR in their limited jurisdiction.

EDIT: See Kevork 634 F.Supp. 1002 "The defendants also contend that FISA
violates Article III of the Constitution because the Foreign Intelligence
Surveillance Court _is not a proper Article III court_ and because the Act
delegates judicial power to the Executive Branch. In addition, the defendants
argue that the structure of the FISA court denies its judges their judicial
independence, making the Court a rubber stamp. These arguments were raised and
rejected in... _I also reject these contentions_."

The court rejected the argument that the FISA court was not an article III
court.

~~~
tptacek
The President appoints Court of International Trade judges, and those
appointments are confirmed by the Senate.

I think you and 'DannyBee have made it pretty clear that _relying_ on the idea
that the FISC isn't an Article III court is a perilous position, but I
continue to be unclear on how FISC possibly could be an Article III court
given its structure.

------
D9u
This is the same government that allowed a president to debate the meaning of
the word "is."

[http://www.slate.com/articles/news_and_politics/chatterbox/1...](http://www.slate.com/articles/news_and_politics/chatterbox/1998/09/bill_clinton_and_the_meaning_of_is.html)

I am disgusted.

~~~
mpyne
'allowed'? Why would the government forbid him from debating it? Do we have
First Amendment rights or not?

