Category Archives: Courts

Limit FISA Surveillance?

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Certainly, the process is beset with vast, and serious, problems.

Mr [DoJ Inspector General] Horowitz’s staff reviewed a sample from a recent five-year period, October 2014 to September 2019, during which the eight FBI field offices applied for more than 700 surveillance warrants on US persons. Each of the reviewed files contained errors, inconsistencies and omissions. After reviewing the report, the FISA court’s Chief Judge James E Boasberg issued a rare public order. He told the government to undertake steps to ensure the accuracy of FISA applications. Yet inaccuracy isn’t the only problem. The use of FISA against a US citizen presents a fundamental threat to civil liberties. It essentially suspends the Constitution.

The problems, though, aren’t limited to FBI misbehaviors, the FBI being the proximate target of Boasberg’s order. The existence of these errors and the long-time existence of this sort of error each and together demonstrate that men of government, when able to exercise their power in the darkness of secrecy, cannot be trusted to stay true to the straight and narrow, to the strictures of integrity.

After FISA was enacted in 1978, FBI Director William Webster set the standards for its use.

And those standards have been violated.

Over the years FISA has been amended to allow for the surveillance of Americans. But there were safeguards.

Even with that legislative drift, the evolving safeguards have been violated.

It’s enough.

Limiting FISA surveillance must begin with eliminating the Star Chamber that is the FISA Court. That court is lawless enough already, as its ready and unquestioning acceptance of false warrant applications demonstrates. Its secret proceedings, along with that history, lend no credibility to the premise that, were its approvals limited by statute to foreign nationals, that it would honor those limits any more than have the men coming before it with applications to spy on American citizens foreign nationals who happen to be corresponding with American citizens.

Nor has that secret court ever been necessary, even did it behave properly. It exists to facilitate secret surveillances supported by secret warrants. Our Article III courts, and our State courts, have long been checked out on sealing—keeping secret—warrants, and subpoenas, until it comes time actually to serve them. Our courts, and our States’ state-level and local police departments, have long been checked out on conducting quiet surveillance—while under the careful eye of our public courts and of us citizens of the United States and of the State wherein [we] reside.

The existence of this Star Chamber is at the heart of the suspension of our Constitution about which Baker wrote at the link.

An Expansionist Germany

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Not military expansion, but a more insidious one: legal expansion.

The German government must come up with a new law regulating its secret services, after the country’s highest court [Federal Constitutional Court] ruled that the current practice of monitoring telecommunications of foreign citizens at will violates constitutionally-enshrined press freedoms and the privacy of communications.

And:

The key legal question was whether foreign nationals in other countries were covered by Germany’s constitution….

Why, yes, yes they are. Because German sovereignty reaches deep inside other nations’ borders, other nations’ legal and political jurisdictions, overrides those nations’ own sovereignty. Germany’s laws not only apply outside German borders, they apply inside other nations’ borders.

The Court’s judges’ hearts may have been in the right place, but this sets an ugly precedent regarding the allegedly inherent superiority of German sovereignty.

Finally, Some Recognition

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…of the role of Federal laws in State activities. Recall that two New Jersey officials of then-Governor Chris Christie’s (R) administration were convicted in Federal court for

hav[ing] participated in a 2013 scheme to create traffic backups in Fort Lee, NJ, by limiting motorists’ access to the George Washington Bridge that crosses into New York—in retaliation against Fort Lee’s Democratic mayor, Mark Sokolich, for not supporting the re-election bid of Mr Christie, a Republican.

The Supreme Court, unanimously, tossed those convictions. The unanimity of the throwing out is made the more noteworthy by this money quote, by none other than Justice Elena Kagan, who wroteg for the Court:

not every corrupt act by state or local officials is a federal crime.

Think about that for a bit.

A First Amendment Case

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Oral argument on a 1st Amendment case was heard by the Supreme Court last Wednesday. The case centers on

whether or not a 1991 law that protects people from receiving unwarranted telemarketer calls is a violation of the First Amendment when applied to political organizations.

This strikes me as a no-brainer that never should have gotten out of any District court. The 1st Amendment bars the abridgment of political speech in the public square. It does not take away the right of private citizens to decide for themselves what speech they will hear from within their own, private property.

That private property is entered by telephone as surely as it is by the speaker’s physical presence, and those resident on the property have no more obligation to allow the speaker’s telephonic entry than they do the speaker’s physical entry.

Nor does the 1st Amendment create a right of a political speaker—or any other speaker, or any person in any guise—to use another person’s private property to speak, nor does it create an obligation of the property owner to allow that use.  This applies to land lines terminating in a home or private business, and it applies to a wireless telephone, or a cell phone, or any other communications device wherever its owner might happen to be at the time of the political speech effort.

The Supreme Court should so rule, and it shouldn’t take long or very many pages at all to convey the ruling.

Judicial Abuse

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The Wall Street Journal has laid out the present abuse. DC Circuit nominee Justin Walker is up for confirmation hearings this week.  Now recall how the so-called watchdog of judicial ethics, the Codes of Conduct Committee tried to get potential judges disqualified from their nominations for the apostasy of belonging to the Federalist Society. There was considerable blowback over the Committee’s draft rule that would have affected the bar: 210 appellate and district judges signed a letter to the Committee demurring from the rule.

One of those letter signers was…Justin Walker. Now the Left, including particularly Senator Sheldon Whitehouse (D, RI), who is a member of the Senate Judiciary Committee, wants to use that letter as the reason to disqualify Walker from the DC Circuit confirmation.

Note, now, that the Committee’s draft rule remains in draft; it has not been withdrawn from consideration.  At this point, the WSJ exposed a surprising naivete.

Chief Justice John Roberts is the official head of the Judicial Conference, and he should call Judge [Codes of Conduct Committee Chairman Ralph] Erickson and tell him to kill this draft forthwith.

Roberts has shown himself too timid and too mindful of his image in the press to make such a call.

On the other hand, his call isn’t strictly necessary: the Codes of Conduct Committee is a committee of the Judicial Conference of the United States. The latter, in turn, is a creation of the Congress.

It would be straightforward for an honest Congress to rein in the Code of Conduct Committee, to disband it altogether, to alter the Judicial Conference, to disband that body altogether, or to otherwise reform the Judicial Conference so as to eliminate abuses like those of its subordinate committees.

On the third hand, reform is especially difficult with the present House.

Look for an especially vitriolic “hearing” by the Judiciary Committee’s Progressive-Democrat members.