NSA

Secret Court Opinion on Secret Surveillance Needs To Remain Secret, Says Government

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President Barack Obama and President Xi Jinping
White House

On Friday, President Obama threw his hands up in dismay over cynical Americans who don't trust him, lawmakers and judges to keep an eye on the surveillance apparatus. The very same day, his Justice Department argued in court that a decision by the secretive Foreign Intelligence Surveillance Court finding legal flaws in the way the federal government conducts its surveillance operations needs to be kept under wraps.

In San Jose on Friday, President Obama said:

That's not to suggest that you just say, trust me; we're doing the right thing; we know who the bad guys are.  And the reason that's not how it works is because we've got congressional oversight and judicial oversight.  And if people can't trust not only the executive branch but also don't trust Congress and don't trust federal judges to make sure that we're abiding by the Constitution, due process and rule of law, then we're going to have some problems here.

But the Electronic Frontier Foundation reveals that, at the same time:

In a rare public filing in the secret Foreign Intelligence Surveillance Court (FISC), the Justice Department today urged continued secrecy for a 2011 FISC opinion that found the National Security Agency's surveillance under the FISA Amendments Act to be unconstitutional.  Significantly, the surveillance at issue was carried out under the same controversial legal authority that underlies the NSA's recently-revealed PRISM program.

EFF filed a suit under the Freedom of Information Act in August 2012, seeking disclosure of the FISC ruling.  Sens. Ron Wyden and Mark Udall revealed the existence of the opinion, which found that collection activities under FISA Section 702  "circumvented the spirit of the law" and violated the Fourth Amendment's prohibition on unreasonable searches and seizures. But, at the time, the Senators were not permitted to discuss the details publicly. Section 702 has taken on new importance this week, as it appears to form the basis for the extensive PRISM surveillance program reported recently in the Guardian and the Washington Post. 

Have the court's rare objections to NSA procedured been addressed? Is the government just ignoring the court? What were those procedures that so troubled a court that approved all but one of the 1,856 surveillance requests it received in 2012, the year after its ruling that some amount of the surveillance it oversees is unconstitutional? The Justice Department doesn't want us to know.

What's not to trust?

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  1. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.

    Well it looks like we’re going to have some problems here, then

    1. “Nice large-scale attack-free decade you got there, be a shame if anything was to happen to it.”

    2. This guy is POTUS? And he needs to wonder about trust of Congress? Has he ever just once looked at the approval ratings for Congress, just once in the past 6 years? Has it ever in that time, broke 15%? I would say that the evidence people don’t trust congress is overwhelming.

    3. So, as a “constitutional scholar” he never bothered to investigate the founding of the country and discover that the whole thing was written explicitly because those in power CAN’T be trusted?

  2. SETEC ASTRONOMY

    1. “You know I could have been in the NSA, but they found out my parents were married.”

      1. I didn’t know you could do that in Mexico City.

  3. “They have made their decision, now let them enforce it.”

  4. We need to spy on our citizens…to know whats in them.

    Mme Pelosi

    Hat tip – Assfire

  5. Just the tip. Just this once. Just to see what it feels like. TRUST me!

  6. I’ve argued for years that the absolute trust in our vast array of elected leaders and endless army of bureaucrats makes the United States Constitution’s Bill of Rights not just embarrassingly vestigial but in fact a huge hindrance to getting things done.

    1. “We sleep safe in our beds because rough men stand ready in the night to visit violence spy on everyone in an attempt to find those who would do us harm. “

    2. Our vestigal bill of rights has a massive yeast infection.

  7. It’s Secrets all the way up.

  8. I’m pretty sure most of the regulars on here will do pretty well on this quiz, but it’s scary how closely the two resemble each other.

    http://www.buzzfeed.com/hnigatu/orwell-or-obama

  9. This is gone beyond ridiculous. The scope and nature of surveillance of Americans conducted by the intel community is something that should be subject to public debate. The public has a right to decide how powerful they want the NSA to be. And they can’t do that if everything the NSA does is secret.

    No one is asking that the NSA to give specific information, just the scope of what they are doing. Indeed, our enemies knowing the NSA is listening to everything is likely to disrupt their operations by forcing them to avoid email and phone use. So spare me the “this makes us less safe” bullshit.

    If the NSA and the President think this is necessary to protect the country, then they should make their case why. If they can’t, then they have no business doing it.

  10. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law, then we’re going to have some problems here.

    Isn’t the fact that government can’t be trusted without oversight why we have elections, a Bill of Rights, three competing branches and all of the rest? If we could trust government, we could just have a dictatorship and not worry.

    1. Don’t give them ideas!

    2. If we could trust government, we could just have a dictatorship and not worry.

      That’s the idea. Unfortunately, I don’t think that’s too far away. One more big attack, and the citizens may willingly give the president dictatorial powers.

      1. I refuse to call anyone a citizen that would do such willingly. They are the enemy.

  11. Hector Berlioz, FISA court overture.

    (“The Judges of the Secret Court/Les Francs-Juges”)

    https://www.youtube.com/watch?v=cO2aWCesXVU

  12. Why is it that this surveillance program needs to be run with a veil of secrecy? The American public should have the right to make the choice of privacy versus safety and the program(s) should be open to public debate.

    1. Dude. We live in a society where our right to choose whether we ingest sugary beverages is questioned by supposedly well-meaning government agents. Is any of this a surprise?

  13. And if people can’t trust not only the executive branch but also don’t trust Congress and don’t trust federal judges to make sure that we’re abiding by the Constitution, due process and rule of law

    We don’t.

    then we’re going to have some problems here

    Exactly!

  14. Given that you generally must have intent to violate a law to be convicted of breaking it, wouldn’t it be impossible to violate a secret law?

  15. then we’re going to have some problems here.

    Holy shit, I agree with Obama on something. Am I turning into a progressive?

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