Privacy v Homeland Security

A federal judge in Oregon recently affirmed the authority of United States Government’s to conduct mass, or “bulk” data collection under FISA.  It is the first case brought after the fire-storm caused by Edward Snowden’s revelations of massive government spying made international news.  The case involved a man convicted of planning a terrorist bombing at the Portland Christmas Tree lighting ceremony in 2010. The conviction was based, in part, on emails that were found on his computer.  In short, the Oregon judge ruled that the government has the authority to spy on foreign nationals, including any communications with United States citizens, without having to use the normal channels of judicial intervention and the procedures/safeguards that go along with it.

By no means do I condone terrorism.  I neither tolerate, nor find acceptable, violence of any kind.  Moreover, I certainly don’t wish to limit our government’s ability  to use whatever reasonable means necessary to stop a future terrorist attack, even if that entails taking a few liberties with our otherwise inalienable rights.  The idea that I, as a defense lawyer, can acquiescence to this  enhanced power is rooted in the words “reasonable means”.  However, as a defense lawyer who takes seriously the idea that our constitutional rights are moored in stone,  I have very different ideas when it comes to the type of power the FISA court has been granted.  From what we can ascertain, the means used by the FISA court are certainly not reasonable when compared to those used in our constitutionally sanctioned judiciary. 

For those of you who either don’t know, or don’t remember what FISA is, it is the Foreign Intelligence Surveillance Act.  Congress codified the act, which established a court system to preside over issues of national security that were contemplated by FISA itself.  In other words, the FISA court is a secret government “judicial system” that granted itself enormous authority to essentially behave as if the Fourth Amendment doesn’t exist.  Either that, or the FISA court simply considers itself above the parameters, limitations and unambiguous language of the constitution.  This clandestine court is so powerful that it has often been referred to as “The Parallel Supreme Court’, and “The Secret Court”.

It was originally enacted by congress as a means to obtain surveillance warrants against foreign intelligence agents operating outside of the United States.  And contrary to the intent of our Founding Fathers when they established an open and public judiciary, the FISA court operates completely under the radar.  The process itself is not open to the public, nor are it’s procedures open for public review.  Any records or documents associated with its proceedings and operations are classified.  Over the years it has become more and more intrusive;  a means to spy on people, both foreign individuals and United States citizens, essentially unfettered.

Apparently, one of the justifications for its existence is the omnipresent patriotic message that the country is somehow more safe as a result of having such a secretive process.  I, on the other hand, tend to think that we are all LESS safe when the government operates under a cloud of secrecy, and with unfettered power.  After all, we fought a few wars over the years to combat the type of government that wields power without accountability, one that has the ability to operate in secrecy and by deception.  Tyranny is the word that comes to mind when I start to imagine such a system of government.  Having a secret court, whose sole mission is to grant the authority to spy on anyone the government deems of interest in the war on terror, is the very type of government we fought to be free from in the first place.

Although the FISA court is classified, we do know a few things about this Eastern Block style of justice.  We know that there are 11 judges, all of whom are appointed by the Chief Justice of the United States.  That would be John Roberts, a George W. Bush appointee. We also know that the only people authorized to appear before the court are government lawyers.  That’s right, you read that correctly, only government lawyers.  In other words, a one sided system where a suspect or an accused has neither the ability, nor the right, to be heard.  I guess the idea of Due Process only applies when the government deems it convenient. As a result of its secrecy and appearance of government bias, the FISA court has been refered to as a rubber stamp for government requests.  In fact, former National Security Agency analyst Russ Tice called it a, “kangaroo court with a rubber stamp”.  Needless to say, the federal government strongly disputes any allegations of bias or one-sided justice.  I would be shocked if it didn’t, wouldn’t you? Somehow I doubt that our so-called “government of the people, for the people and by the people” will ever admit to spying on its own people.

I think it’s fair to say that the Federal Judge in Oregon can now be referred to as “Captain Kangaroo”.  Apparently he doesn’t mind presiding over a court that can never, under any circumstances, affirm or restore trust and faith in our system of justice.  One that is supposed to be open, transparent and impartial.  For once it would be refreshing to see a judge uphold the privacy rights of our citizens rather than further erode them under the guise of national security.I won’t hold my breath.

As it stands now, we all might as well just start copying the government on all electronic communications we send and receive.   The government is looking at it all anyway.