Want to File a Motion in the FISA Court? First You Have to Find Them | Hacker News Reader

Want to File a Motion in the FISA Court? First You Have to Find Them

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255 pointstsaoutourpants81 comments

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?

We've forgotten that, internal passport checkpoints, arrest without articulated cause, search without warrant, warrantless surveillance, national IDs, and a whole lotta other things which used to be mentioned as code for the worst oppressive governments and which are now widely accepted as normal, even demanded, by the masses.

There's a whole lotta people who figure this isn't going to get fixed without things breaking.

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

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

... have *no anti-standard ...

Have we forgotten this already?

Given that our current President wasn't alive for half of it (exclusive of petering out, 1947-1961), that seems pretty likely.

"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.

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

Whoa. That is frightening. Limited terms only? Let me guess, the current administration gets to choose whatever judges they want to preside over the FISC rulings made during their tenure.

They get appointed by the Chief Justice, not the administration.

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.

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.

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.

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.

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.

Then let's bring it to YouTube!

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.

I question your assertion it is not an Article III [1] court. In fact, I think you are either wildly misinformed or being intentionally misleading.

The FISA court of 11 judges is appointed by the Chief Justice of the United States. [2] It absolutely is an Article III court. The ACLU has even acquired its rules [3].

The fact this is the top comment without citation is troubling. Please don't encourage these sort of claims without at least a cursory glance at the documents governing these institutions.

[1] http://www.law.cornell.edu/constitution/articleiii [2] http://www.law.cornell.edu/uscode/text/50/1803 [3] http://www.aclu.org/patriot_foia/2003/court_rules.pdf

If FISC was an Article III court, wouldn't its judges have lifetime tenure? Wouldn't it's judges be appointed by the President and confirmed by the Senate?

I don't think membership consisting of judges who would otherwise preside over Article III courts necessarily makes FISC an Article III court, and judges appointed by the Chief Justice actually suggest the opposite.

There's an article at the Yale Law Review that criticizes FISC for not being a regular Article III court.

You would think they'd have lifetime appointments as other federal courts do, but it's important to note FISC (and its review process) isn't the final stop on some Orwellian and diabolical train.

It is very easy to get caught up in examining the mechanism itself as a way of stamping out the abuse of the mechanism. As much as I dislike what the court represents, I can't fully qualify its dissolution.

In 50 USC § 1803 (b) it specifically states the Supreme Court has jurisdiction over the decisions. The Title itself is designed for expediency and proximity - something its "parent" court isn't designed for.

I agree with all of this. Also: I don't think it's settled as to whether FISC is an Article III court or bound by the same rules as an Article III court; for instance, Orrin Kerr doesn't seem to know.

I don't think the evidence we have is reliable enough to call someone "wildly misinformed" or "intentionally misleading", though.

> I don't think the evidence we have is reliable enough to call someone "wildly misinformed" or "intentionally misleading", though.

Perhaps not. However, my original challenge to rayiner's comment has produced far more meaningful and mostly-cited comments. Could it have been less inflammatory? Absolutely. Would it have produced this discussion if it had been? Uncertain.

The original comment did not add any value to the post. I have never read Orrin Kerr's writings and both of you citing him caused me to do so.

Perhaps citing Kerr in the original comment, as he has well regarded opinions on the subject, would have been additive as I assume rayiner intended to be.

After all, if we don't challenge for citation and additional information, what are we doing here?

I agree with all of this, but it would be nice if the decorum rules on HN included begging pardon or even apologizing in a case like this. At the very least, when you make an inflammatory claim about someone else in a thread, notice and acknowledge when it's refuted.

See my correction above. I wouldn't say I'm "wildly misinformed" (the definition of "Article III court" isn't bright and clear, and Orin Kerr couches his opinion that the FISA court is an article III court in a "I would think") but it's probably most accurate to describe the FISA court as an article III court, albeit one that can't exercise any of the powers that would make a secret article III court scary.

Why would you describe FISC as an Article III court at all? It looks to me like there's more evidence that the opposite is true.

I think most people would call the FISC an Article III court just based on the fact that historically the focus of "Article III-ness" has been on the independence of the judges, as a result of the Article III guarantees of lifetime tenure and non-diminishment of pay during service. At least one court of appeals has rejected the argument that the FISC judges are not article III judges because they serve limited appointments, because they are nonetheless U.S. district judges: https://bulk.resource.org/courts.gov/c/F2/807/807.F2d.787.85....

That said, I don't think Glidden v. Zdanok unarguably supports the idea that FISC is an Article III court (though Kerr doesn't claim it does), just because it is composed of article III judges. Glidden is actually about the opposite question: whether the judges were article III judges based on whether the Court of Claims and the Court of Customs and Patent Appeals were article III courts. And most of the analysis of Glidden focuses on things like the courts' ability to hear justiciable cases and controversies and to exercise the Article III judicial power. Under these criteria, you cannot call the FISC an Article III court because it can't even hear any cases and controversies, nor can it exercise the essence of article III judicial power (the power to render binding, final judgments with regards to matters affecting life, liberty, and property).

So I would personally call the FISC an Article I court staffed by Article III judges sitting by designation. But I worry it would be an idiosyncratic use of the term. In any case, whatever you call it, it is clearly not empowered to exercise even a substantial amount of the Article III power, which is the substance of my point. It can't put you in jail or take your property.

It's also not adversarial; the government has substantial advantages at FISC that Google doesn't have. Which supports the notion that FISC wasn't conceived of as a regular Article III court, but rather as a different kind of check; more of a review board than a court.

Obama said yesterday,

"On this telephone program, you've got a federal court with independent federal judges overseeing the entire program," the president continued. "And you've got Congress overseeing the program, not just the intelligence committee and not just the judiciary committee, but all of Congress had available to it before the last reauthorization exactly how this program works."

This is slippery and brings to light a problem with FISC. Its judges are independent, but the process is not. The FISA process (necessarily!) begins with the premise that NSA has a Constitutionally unchecked authority to conduct foreign surveillance.

I think this would be fine, were it not for the fact that NSA seems to be transitioning from a role that was principally involved in nation-state intelligence to a role that is inextricably bound up with law enforcement. You can see the problem when Mueller starts talking about what it would take for FBI people to dig deeper into NSA work product. The FBI shouldn't have access to NSA product to begin with.

Right, that's precisely my greatest concern. It's one thing to have a limited secret court overseeing executive authority. It's another to imply that it's an independent federal court (note: he said it was a federal court with independent judges, not an independent court).

...NSA seems to be transitioning from a role that was principally involved in nation-state intelligence to a role that is inextricably bound up with law enforcement.

Any organization will act to grow its responsibilities and thus its resources. The USA has no real enemies anymore, and yet these agencies keep growing. Organizations will grow until they encounter some sort of limit.

Is the problem that those who would previously have overseen these agencies and curbed the over-extension you cite no longer want that oversight role, or that they are no longer capable of that oversight role? Barrack Obama talked on the phone all his life just like all other Americans do. His predecessors were the same. What kind of President would be able to cut the NSA budget?

I think reasonable people can debate whether foreign terrorist cells are a real enemy. In the context of NSA surveillance I tend to think "yes", but in the context of airport security I tend to think "no", so it's fair to say I'm ambivalent about terrorism.

But we do have an unmistakable and terrifically serious security problem: proliferation. We spent decades in an arms race with a foreign power that built an arsenal that could end the world several times over. When we won, they disintegrated. Meanwhile, the technology to duplicate atomic weapons technology that we had in the 1950s is improving.

There isn't a lot of foreign surveillance I can imagine having a problem with allocating to the problem of nuclear proliferation.

There isn't a lot of foreign surveillance I can imagine having a problem with allocating to the problem of nuclear proliferation.

This would be an excellent priority for our intelligence agencies. Do any of the practices revealed recently seem designed to address that priority? An adversary capable of obtaining, maintaining, and deploying nuclear weapons would probably be capable of secure communications even in the face of PRISM, whether here or overseas. The most likely vector would be something like a submarine or a well-shielded shipping container, but if the plan did require agents in this country I doubt those would be discussing their plans on Facebook or over the phone.

Yes; the FAA 702 extensions that were passed a few years ago specifically mentioned terrorism, proliferation, and espionage.

The set of skills required to carry out an atomic attack and the set of skills required to evade surveillance by NSA are disjoint and seem unlikely to get more correlated. But that's just speculation on my part.

My only point here was that "terrorism" isn't the only threat that NSA is tasked with dealing with.

How instructive is it that the EFF was able to file a brief with the FISC and be granted a motion on a federal lawsuit? That seems pretty similar to the powers of a typical federal court. Note: I'm no lawyer and did not stay at a holiday inn last night.

https://www.eff.org/deeplinks/2013/06/public-first-secret-co...

The EFF's actual FOIA lawsuit is filed in the U.S. District Court for District of Columbia. You can read the FISC court's opinion to get an idea of what powers it things it has with respect to that ongoing litigation (http://www.uscourts.gov/uscourts/courts/fisc/misc-13-01-opin...). The relevant part is at the end:

"For the foregoing reasons, EFF's motion is granted in part. The Court holds that FISC Rule 62 does not have the effect of sealing copies of the Opinion in the Government's possession and that the Court has not otherwise prohibited the Government's disclosure of such copies in response to the EFF's FOIA request. This Court expresses no opinion on the other issues presented in the FOIA litigation, including whether the Opinion is ultimately subject to disclosure under FOIA. Such questions are appropriately addressed by the District Court in the FOIA litigation."

I should clarify that I probably should have said "regular article III court." The FISA court is an article III court in the technical sense of the term (at least Orin Kerr things so: http://www.orinkerr.com/2006/07/14/article-iii-standing-and-...), because its judges are article III judges. Reading Kerr's comments, I'm now convinced that this is probably the correct use of the term.

However, when someone says "article III court" they are usually referring to: the Supreme Court, the U.S. Courts of Appeal, and the U.S. District Courts, as these are the only courts that can exercise the full judicial power of the United States. In that sense the FISA court is not a regular Article III court, because it has a circumscribed set of powers.

In any case, my point is that a "secret court" sounds scary, and a secret court with full Article III powers would be very scary. But the FISA court is not such a court.

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.

Agreed. Once you learn how FISA works, it gets pretty scary:

http://hotair.com/archives/2013/06/18/is-there-a-leak-at-the...

"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.

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).

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.

Unless you wind up on a no-fly list.

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

Subpoenas are subject to a motion to quash and third-party subpoenas are quashed all the time.

Can FISA warrants be used in situations where an Article III warrant would be required? I don't think that's the case. Also, tons of executive agencies have subpoena powers, e.g. the SEC.

Where does that line get drawn nowadays? Clearly they can intercept my communications and remotely search my hard drive (if they can get in). Is the limit solely that they can't bust down my door and search my cabinets?

Can they remotely search your hard drive?

Let's rephrase that.

I'm unsure whether they have the ability to remotely search my hard drive, but when you pair the existence of exploits with what appears to be widespread surveillance, I believe that the government feels that it MAY, should it ever have the capability to do it.

edit: Yes, I think they CAN remotely search your hard drive. Whether it's by installing malware over the network or by a team of experts who physically breach your security doesn't matter quite as much, other than in terms of scale.

More importantly, if the government CAN do it, you have little redress as a citizen. You can't sue them unless you can prove it happened, and even then they will argue with the power of infinite lawyers and money that it's legal anyway when the government does it.

> Those warrants are beyond the power of the President.

Aren't all warrants beyond the power of the President? Isn't that the point of warrants in the first place?

I enjoyed Kafka much more when it was fiction.

For those who want to enjoy it: 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."

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.

Quote of the day! ...sadly

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

My first reaction upon seeing your username and remembering previous HN discussions related to your actions was "oh, it's you!".

Keep up the good work. :)

Thank you! I have trouble resisting doing more work when the government keeps making my previous causes look like minor constitutional transgressions in comparison. ;)

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) - 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.

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.

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

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.

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.

>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.

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.

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... urt/

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.

I can see it if I put in https; Thanks.

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

> Probably just websense being rubbish

Websense is always rubbish.

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

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

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

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.

That's basically the deal.

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

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

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.

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

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.

Actually, the FISA court is supposed to be accessible to motions from non-governmnet parties. Please see the FISA Court's rules: http://www.uscourts.gov/uscourts/rules/FISC2010.pdf

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.

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.

And due process would continue as normal.

>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)

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...

The reason FISA exists at all is that the concept of the CIA going into court for a warrant to spy on foreigners is nonsensical. Foreigners don't have standing in federal court, and the CIA is not bound by the rules of federal procedure.

The point of FISA is to ensure that U.S. citizens are not swept up in intelligence activities that should be targetted solely at foreigners. If it operated properly, it would not matter much to U.S. citizens that it is secret.

Obviously it's not operating properly now--in part because of overreach by intelligence agencies, and in part because their oversight powers were reduced by Congress following 9/11.

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