Given that the activities of the DOJ and the NSA do in fact have a direct and immediate impact on individuals that the public law is written, ostensibly, to protect, how can it be argued that these organizations should be allowed to interpret the law in a secret manner?
My point is, that a law which as written to govern the activities of the DOJ and the NSA, does in fact apply to the public.
Consider: there are many laws which govern the activities of the police. These laws are public laws, and effect the public directly. When the police violate these laws (as they often do), a public court interprets the public law with which said police failed to comply, and thus violated your, the public's, rights. The secret FISC courts make it impossible for you to have any recourse in the manner in which your rights are being violated.
This is the stuff of communist China.
Congress has the authority to do that, just like Congress doesn't have to pass individual acts determining each line item NOAA spends money on, or how exactly EPA will monitor industrial emissions.
I'm not saying Congress was smart to concede this authority to NSA and FISA; in fact, I think doing so was a dereliction of their duty. But what it wasn't was a power grab by the surveillance state. Rather, it was Congress being too short-sighted and bored of surveillance issue to properly regulate it.
My point is that even if the law applied specifically to the NSA/DOJ/FISC, it still applies to each individual, because the laws in question specifically govern how that NSA/DOJ interacts with individuals.
No one here is saying that the NSA is acting outside the law. That's the travesty of the thing. They are not. They are doing what congress allowed them to do. But the fact is, congress intentionally setup a system which has, in essence, unbridled power. When you tell a group of enforcers "the law means what you think it means", this is what the inevitable result will be.
Hmm. To me it looks like the supporters of a surveillance state did something clearly illegal for a few years, and once it started to come out they got the laws changed to legalize it, grant retroactive immunity, and prevent any meaningful oversight -- doing their best to prevent any real debate on it.
As part of changing the laws, intelligence officials have repeatedly failed to disclose key information, inflated the successes of these programs, and on at least some occasions lied to Congress. The chairs of the House and Senate Intelligence committees are strong supporters of the surveillance regimen, and have worked closely with the administrations throughout the years.
Would the 2008 FAA debate (which was pretty close -- 40+ votes for the Bingaman amendment) have come down differently if people knew the breadth of the phone and internet metadata tracking and definition of "relevant"?
So it looks like a power grab to me ...
I personally am in the camp that believes congress washed their hands of this matter long ago
FISC was created as part of a mechanism to reign in potential legal and illegal activity by the intelligence apparatus: http://en.wikipedia.org/wiki/Church_Committee.
Do we know where the pressure/lobbying for passing rule-making authority was sourced?
I'm not on the 'power grab by the surveillance state' wagon, but I am keenly interested in where the sources lie and what arguments convinced Congress to pass off rule-making authority.
It's not that foreign signals intelligence is too technical a topic to regulate, but rather that FISA necessarily deals in the whole sweep of the most sensitive secrets the USG handles. One imagines that virtually any sensible bright-line rule a legislature could come up with would immediately compromise some prima facie legitimate objective that NSA might already have. Worse still, the process of sorting out these conflicts between pragmatism and principle involves a sort of survey of the whole landscape of secrecy --- which, suffice it to say, is not a terrain Congress is comfortable wandering around.
That's not to say that all, or even most, of what NSA does is prima facie legitimate! It's just to point out that there are probably a diversity of legitimate programs that need to be accounted for, but somehow accounted for without betraying them to the world.
Okay, so it almost sounds like the problem here is Congress is reticent to dig into surveillance issues, not because they can't keep the proceedings secret during a hearing on classified matters, but because passing legislation that responds to issues uncovered during such a hearing would have the undesirable effect of promulgating exactly what potentially problematic issues are at play in the text of laws (which would then have the undesired effect of notifying legitimate enemies/adversaries/targets as to what the specific technical capabilities of NSA, et al., are). So, if this is somewhat accurate as assessment, the congressional response is to then create a legal gatekeeper that can adequately assess the sensitive nature of the issues and (hopefully) provide sane guidance and oversight without codifying problems in laws. Hence, the prevalence of rules and policies that allegedly safeguard citizens, but no specifically detailed laws on the matter?
Now, the task appears to be interrogating whether or not this is a valid protection of the citizens' rights without violating or unintentionally weakening the Executive powers we depend on for national security, right? Given that the leaks have publicized an alleged extent of sigint activities and capabilities, at what point does Congress act to legislate legitimate safeguards?
[edit: a bit more clarity]
A separate issue is the process by which executive discretion is exercised. Take a simple, less politically charged example: drilling on federal lands. The President has the legal authority to set policies for drilling on federal land. It is not illegal for the President to conduct this policy-making in secret. I don't think it's good government, but it's not illegal.
FISC is similar. The most important thing to understand about FISC is that it was a Congressional response to executive surveillance activity that was previously happening without any judicial oversight. Three Constitutional principles give the executive substantial latitude in engaging in surveillance activity: 1) records held by third parties are generally not protected by the 4th amendment; 2) non-citizen and non-residents generally don't have 4th amendment protections; 3) the executive has supremacy when it comes to matters of national security and war.
These three principles give the executive a lot of latitude in conducting surveillance. It can tap the phones of foreign agents. It can collect information like phone numbers dialed by citizens. It can do that all Constitutionally without getting warrants. FISC was an attempt to insert at least some judicial accountability for things that would otherwise be entirely within the executive discretion. That's not "the stuff of communist China." That is a compromise intended to get around the fact that the Constitution really doesn't look favorably upon the courts' second-guessing the executive when it comes to war and foreign affairs.
There is also the underlying question of whether all Constitutional violations can be remedied in the public courts. This is not clear that this was intended to be the case. Many people think that in some cases, especially when national security is concerned, the executive is empowered to interpret the Constitution in good faith, and while it is obliged to act within its bounds, its interpretations cannot be second-guesesd by the courts.
[edit: I am seriously asking about legal/constitutional concerns and interpretations. I just re-read my comment and worried that it sounded potentially dismissive or combative, which is not my intent.]
Furthermore, law making does not end when the President signs a bill. Courts regularly interpret and shape laws in a manner that far exceeds the intent of the writers or the limitations of the Constitution. However, in the light of day, we have a remedy for this. We can appeal, in a public manner, such bad decisions, and reverse the over-reach of the lower courts. By allowing secret courts, you are, in fact, allowing secret law-making, because lacking the oversight of the public courts, the over-reach of the secret courts is unchecked.
It most certainly has: citizens of the US have been required to give the intelligence communities their personal data. You may call this something other than "binding," but to imply it doesn't affect individuals (let alone citizens) is a bit imprecise. Surely you aren't saying, "Hey guys, it's only the DOJ."
It was congress who created FISC and FISA, and congress who can end it.
The point you want to be making is about transparency, and about general citizen oversight. The distinction is extremely important; for instance, random citizens of the US have no direct oversight over military operations, never have, and never will. If you make the argument about civilian oversight, you've already lost, because the intelligence system does in fact have civilian oversight; it's just not the oversight you want.
Similarly, if word never filters back, they can't exercise indirect oversight through elected officials, because they're incapable of even knowing that they should be electing officials based on how they will resolve those issues.
Again the problem isn't oversight, but rather (in this instance) that you realize that most of the population doesn't agree with you, and won't vote a representative out of office solely because of their position on FISA.
Mostly conservative republicans, appointed by a conservative supreme Justice. But civilians, sure.
>the DNI is a civilian position,
Every DNI there has ever been has either been a spook or a former high-ranking military officer; except Negroponte, who was, weak sauce.
>There is no truth to the idea that NSA lacks civilian oversight.
There is no truth to the fact that the NSA lacks civilian oversight.
As to the idea that the NSA/FISC lacks civilian oversight? There's no reason to believe that any meaningful oversight exists at all. For one example, consider these recent comments by U.S. District Judge Nancy Gertner
"As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced."
I'm glad we have some common ground there.