
Want to File a Motion in the FISA Court? First You Have to Find Them - tsaoutourpants
http://www.mynsarecords.com/blog/2013-06-17-want-to-file-a-motion-in-the-fisa-court/
======
nl
I'm old enough to remember the cold war. One of the big criticisms of Eastern
block countries was that the courts were subservient to the government, that
the government was not constrained by the law and that trials were secret.

Have we forgotten this already?

If courts have found that national security concerns override any law _and_
something is a national security concern merely on the say so of the executive
branch then is there any constraint on executive branch power at all?

~~~
mcguire
Be careful when you choose your enemies. You will become them.

~~~
jacques_chester
A better formulation might be: Be careful about defeating your enemies.
Without them, you have anti-standard to hold yourself to.

~~~
jacques_chester
... have *no anti-standard ...

------
nohuck13
"The idea that in order to reach the judicial branch, I must ask the executive
branch to process my request is antithetical to the separation of powers
required by our constitution."

Well that pretty much sums it up.

~~~
matthewmcg
Agreed. It's worth noting that the the Foreign Intelligence Surveillance Court
is different than the usual "Article III" courts in that it is created by
federal statute. Though its judges are drawn from the judicial branch, it is
essentially captive to the executive and legislative branches and its judges
have limited terms rather than life tenure. See
[http://www.law.cornell.edu/uscode/text/50/1803](http://www.law.cornell.edu/uscode/text/50/1803)

~~~
legalbeagle
This isn't correct. All federal courts except for the US Supreme Court are
created by statute. The FISC judges are Article III judges on the district
courts or courts of appeal, appointed for life. It is true they are assigned
to the FISC for limited terms, but they are still article III judges serving
in an article III court.

~~~
pseingatl
The U.S. Sentencing Commission consists of Article III judges but although it
is a judicial agency it is not an Article III court. The presence of Article
III judges does not an Article III court make.

------
ErrantX
Corbett is a great read, just the right amount of humour about a deeply
serious matter. I've been following his TSA blog for a while now and his
tenacity is impressive.

For me, what he is now running into is deeply concerning beyond the whole NSA
stuff; secret courts, hidden behind the executive branch is a precedent that
should _never_ be set.

I hope Corbett's work here gets picked up widely by the media.

~~~
tsaoutourpants
Thank you very much! It's interesting what the media picks up and what it
doesn't. It loved my video of me beating the TSA's nude body scanners, but
most of the other stuff I've done -- especially my lawsuits -- seem to barely
piqued their interest. Things, it appear, have to be sensational, rather than
merely important, which is why Snowden managed to get the point across when
others have warned of this spying for years.

~~~
ErrantX
Which really drives into what is wrong with a) the media and b) the populace;
apathy.

The 99% just don't care unless it is on Youtube.

~~~
tsaoutourpants
Then let's bring it to YouTube!

------
rayiner
The FISA court is not an article III court. Its a congressional check on the
executive's exercise of discretion. It limits executive discretion that would
otherwise be unbounded. So the fact that its secret isn't some big scary
thing: it doesn't have the power to make decisions that require an article III
court anyway. It makes decisions that would otherwise be made behind closed
doors in the executive.

The danger of the FISA court is if it starts impinging on the domain of
article III courts. Granting warrants that would otherwise require an article
III warrant, etc. The fact that its real article III judges could lend an air
of legitimacy to that process that it shouldn't have.

~~~
btilly
I question whether the FISA court has as little power as you describe.

Under the FISA law, a FISA warrant may be issued against US citizens if they
are believed to be engaged in or preparing for acts of international terrorism
or sabotage. Those warrants are beyond the power of the President.

Furthermore anyone at all, US citizen or not, under suspicion or not, may
receive a FISA subpoena if the government claims that it furthers an
investigation. That goes WAY beyond any authority that the executive is
supposed to have.

~~~
at-fates-hands
Agreed. Once you learn how FISA works, it gets pretty scary:

[http://hotair.com/archives/2013/06/18/is-there-a-leak-at-
the...](http://hotair.com/archives/2013/06/18/is-there-a-leak-at-the-fisa-
court/)

"Remember, in a FISA court, there is no equivalent of a defense attorney
speaking on behalf of the person being investigated. It is not an adversarial
court. Nobody speaks for you, Joe Citizen. The government makes its case, and
the judge either says, “okay,” or “no, I’m not convinced.”"

\- Since the start of the War on Terror more than 11 years ago, the court has
denied just 10 applications, and modified several dozen, while approving more
than 15,000.

~~~
rayiner
It's not an adversarial court because its powers are circumscribed to issuing
warrants and subpoena orders, which are not adversarial processes in any court
(at least, any court in the U.S. that I'm aware of).

~~~
tsaoutourpants
You're basically right, but other courts have processes for review of
incorrectly issued warrants and subpoenas. With the FISA court, if you were
incorrectly watched, you'll probably never even know.

~~~
fnordfnordfnord
Unless you wind up on a no-fly list.

~~~
tsaoutourpants
Being worked on by a couple of civ rights orgs at the moment!

------
anonymoushn
I enjoyed Kafka much more when it was fiction.

~~~
VMG
For those who want to enjoy it: [http://www.kafka-online.info/the-
trial.html](http://www.kafka-online.info/the-trial.html)

> "You're under arrest, aren't you." "But how can I be under arrest? And how
> come it's like this?" "Now you're starting again," said the policeman,
> dipping a piece of buttered bread in the honeypot. "We don't answer
> questions like that."

~~~
jacques_chester
For those who find this a bit hard to follow, I found the translation in the
Penguin edition to be free-flowing and quite poetic in places.

------
tsaoutourpants
Hello, OP and guy who is tracking down the FISA court for you. Happy to answer
any questions!

~~~
will_brown
1\. Can you release a sample of your Motion to Quash, sans personally
identifying information, or maybe the Motion on your own behalf?

2\. Will you consider filing a Motion to the Court mandating the Court
acceptance electronic filings (CM/ECF), since 1. presumably all Americans have
standing; 2. your experience alone should be prima facie evidence that the
Court is purposely limiting access to the Court itself; 3. it is an exception
that a Federal Court does not permit CM/ECF (see:
[http://www.uscourts.gov/FederalCourts/CMECF/Courts.aspx](http://www.uscourts.gov/FederalCourts/CMECF/Courts.aspx))
\- I am of the opinion that #2 will cause the most damage because it will open
the floodgates and overwhelm the Court.

Give em hell.

~~~
tsaoutourpants
1\. The form is basically on the Web site. If you copy and paste it into Word,
you're all set.

2\. There's nothing I'm aware of to force a court to accept electronic
filings. But they really should accept paper filings directly.

~~~
will_brown
In case it has not been posted in the thread, here is a link to the Rules of
the FISA Court:
[http://www.uscourts.gov/uscourts/rules/FISC2010.pdf](http://www.uscourts.gov/uscourts/rules/FISC2010.pdf)

As to #2, as far as I am aware, there is nothing to "force a court to accept
electronic records"; however, this would be in the inherent discretion of the
Court. Especially persuasive is the argument that in the Court Rules
themselves, under the Filing provision, there is no filing rule just a request
to call the clerk, which on its face appears to be a deliberate attempt to
limit access to the Court - again this is just a Motion, it may be denied,
like the Motions to Quash may be denied, but I imagine a Judge would have a
hard time justifying the denial a Motion to permit electronic filing as such a
limited issue certainly does not jeopardize national security in any sense,
unless they consider citizens exercising their rights a threat to national
security (not that US citizens have a right to e-file, but they have a right
to petition the court, and the argument is that said right is being denied
through the existing Court Rules).

Notwithstanding, the Motions to Quash will likely put great weight on the
judicial economy, and I am sure it is all fun and games in the FISA Court
until the Judges have to cancel their golf games to do real work. It always
makes me smile thinking of the government employees who without any thought
take a personal interest in the subversion of the rights of citizens, and the
crushing weight of the citizens who will fight for their rights/liberties.

~~~
tsaoutourpants
I agree that they're limiting access ad that I could probably ask for some
public method of filing, whether it be paper or electronic. Note that I've
filed so far about 6 motions for file electronically in U.S. District Courts
and Courts of Appeals. Four of them have been granted, 1 rejected because the
judge mistakenly thought the court didn't have the technical ability to do it
for pro se litigants, and one rejected without reason, the latter being by a
Court of Appeals. It's surprising but the courts are not firmly on-board with
the e-filing -- unless, of course, they think it wil make things easier for
them.

~~~
will_brown
>It's surprising but the courts are not firmly on-board with the e-filing --
unless, of course, they think it wil make things easier for them.

As you noted this is for pro se parties, but otherwise not so surprising based
on my personal experience, even for attorneys despite mandatory e-filing in
many instances, local rules or more specific Judge rules require courtesy hard
copies hand delivered to chambers in addition to the e-filing, such is the
nature of 80-90 year old Federal Judges who have no intent on retiring and no
intent to learn how to turn on a computer. In fairness, and I certainly do not
want to come off as unfairly taking shots at the judiciary, I have met a few
old timer Judges who could run circles around me on the computer.

~~~
tsaoutourpants
The first time I spoke in front of a federal judge, the ~90 year old judge
walked into the room with a seeing eye dog. There are indeed awesome judges
out there (and this may or may not have been one of them -- the case was
settled after the first conference), but many have little incentive to adapt
to the new.

------
ajb
Probably just websense being rubbish, but:

Security risk blocked for your protection

Reason: This Websense category is filtered: Potentially Damaging Content.
Sites in this category may pose a security threat to network resources or
private information, and are blocked by your organization.

URL: [http://www.mynsarecords.com/blog/2013-06-17-want-to-file-
a-m...](http://www.mynsarecords.com/blog/2013-06-17-want-to-file-a-motion-in-
the-fisa-co) urt/

~~~
tsaoutourpants
Fascinating. :) Sent them an e-mail asking for an unblock. You may wish to try
over HTTPS, which can give a different result sometimes.

Did you see the article the other day about Google working to create a filter
"to eliminate child pornography" that can be shared by every search engine,
photo host, etc.? Can't wait to see what they expand that to... "photos
promoting violence," "photos that hurt people's feelings," and of course,
"oops that one accidentally got blocked, I don't know how that happened! ;)"
All coming soon if we blink for a second.

~~~
tsaoutourpants
They have replied and told me they've adjusted categories.

------
jstalin
You might try contacting the EFF or ACLU lawyers who succeeded in filing
motions with the court and asking them where to file:

[http://www.uscourts.gov/uscourts/courts/fisc/index.html](http://www.uscourts.gov/uscourts/courts/fisc/index.html)

~~~
tsaoutourpants
I did. Their response was the same as what I found: service through an
intermediary at the DOJ is required.

~~~
jstalin
Crazy. So you must go through an executive agency to access the judicial
branch...

------
perlpimp
One of the articles here stated that FISA is not a court but a group of judges
that have signed up to do this FISA court thing. So when there is a request
for wiretap/search - they get called up on the phone and they have to be in
reasonably secure location to answer and either allow of disallow search
verbally.

Sounds kind hokey doesn't it.

~~~
tsaoutourpants
That's basically the deal.

------
dak1
Well, if these motions ever do find their way to the court, the court's
statistics for rejected motions should improve considerably.

------
score
Jonathan, thanks for being a great example of activism and an inspiration to
me and I'm sure others as well :)

~~~
tsaoutourpants
Thanks, score! I always believe that I can make a difference, and that we all
can. It's just a matter of taking a bunch of your time, putting yourself out
there, and doing it.

------
wpietri
Mildly off topic, but this really reminds me of The Onion's story on Kafka
International Airport: [http://www.youtube.com/watch?v=gEyFH-a-
XoQ](http://www.youtube.com/watch?v=gEyFH-a-XoQ)

------
res0nat0r
The FISA court isn't meant to be a public courtroom, hence it's location isn't
public. Sorry but HN has jumped the shark lately with all of these NSA related
posts, they seem to just be slapped together to elicit some kind of knee jerk
outrage.

If one was actually concerned about the FISA courts location vs. just piling
on with another "government bad" post on HN a little research would tell you
that it is on the top floor of the Justice Department building. Source: my
copy of Shadow Factory by James Bamford. Page 113. Published 2008.

~~~
mtgx
But _why_ is the FISA Court secret? What? They think the terrorists will get
mad they allow the US government to spy on all Americans?

Come on. Let's be real here. There's only one real reason for that, and that's
because they don't want the normal public to know just how far the spying and
skirting of the Constitution goes.

A country with secret courts and secret laws and rulings is not a free
country.

~~~
throwaway9848
Why are is the FISA court secret? Because if the CIA went into a courtroom
that was open to the public and asked for a warrant that was part of a
legitimate investigation into a group planning an attack on the general
public, then there is a good chance that the group could find out about it.

~~~
will_brown
>Because if the CIA went into a courtroom that was open to the public and
asked for a warrant that was part of a legitimate investigation into a group
planning an attack on the general public, then there is a good chance that the
group could find out about it.

You may wish to read the Federal Rules of Criminal Procedure Rule 41
([http://www.law.cornell.edu/rules/frcrmp/rule_41](http://www.law.cornell.edu/rules/frcrmp/rule_41))

You must consider there are reasons that the Rules are drafted in such a way,
1. they are Constitutional protections, 2. they are based on the collective
jurisprudence.

I do not believe what is mentioned in the Rule is the existing procedure for
filing "under seal" which has been created to take into account everything
under the sun that should not be available for public examination: such as
terrorist activities, names of minors, child pornography, ect...

