Is there a process for impeaching the FISA judges for malfeasance?
First, I don't agree that they rubber-stamp warrants, but believe they evaluate them on a case-by-case basis - not least because their decisions might be classified now, but may well be declassified in the future, and their reasoning will be held up to scrutiny.
More importantly, just because an agency is found to have operated illegally does not mean that everything the agency does must then be rejected. It's easy to find examples of police officers or even entire departments being corrupt, but it does not follow that everyone who is arrested by the police is necessarily innocent, or that all arrests are flawed.
Arguments of the kind you make above involve a fallacy of composition, one which seems to appear ever more frequently on HN. http://en.wikipedia.org/wiki/Fallacy_of_composition
1. It seems like at that point it should deny every single request going forward until the illegal activities have stopped.
2. Every request going forward is illegitimate.
(2) is false, but I believe that (1) is plausible, especially if there are any difficulties for FISA to determine whether any particular NSA request is legitimate or not.
I think until we see clear evidence from examples the number of cases denied are an obvious minority. Based on what we know from public disclosure, there is abuse. That to me states there is a good indication rubber-stamping has in fact occurred and should be reviewed. But, since it can't be...
The trustworthiness of the system is not there anymore and it has degraded to a point where most informed citizens would err on the side of saying there is something wrong. There are some grave issues that need to be addressed in short order or our government is going to push any data related industry the way of safer harbors.
The burden of proof is on the positive, not the negative.
And there is a difference between collecting intelligence on foreign governments (which I don't think anyone could ever expect not to happen) and mass data collection. Part of the problem here is that spying on "terrorist" "suspects" is so broad and poorly defined that it could encompass nearly anything and becomes nothing but a convenient fig leaf for mass surveillance.
We lump too many things under the label of terrorism. Someone with the likes of a machete or a hand grenade is distinctly a law enforcement problem rather than a national security problem and cannot justify secret mass surveillance or data collection.
Once you take all of that out and get to the actual national security threats (i.e. nuclear or biological terrorism) you end up with a completely different threat model. More to the point, you need to keep a lot less secret because instances of attempted nuclear terrorism are much more rare. You don't have to classify every court opinion related to some idiot with defective instructions on how to make a pipe bomb just because you have to classify certain methods of preventing nuclear proliferation.
If you have to redact all the of the relevant facts, then any statement of the law is meaningless because it's unclear what sort of fact pattern it should be applied to. I realize this seems abstruse, but the fact pattern is very important in common law judgments. You can't just say 'the law is X' and have it be portable to any other case. The opinion would read something like: 'HELD: the government may xxxxxxx xxxxx when xxxxx xxxx xxx in a xxxxx and xxxxxx.' Read some judicial opinions in normal cases and then imagine how little sense they'd make if the facts were matters of national security and couldn't be published. For that matter it's quite hard for a lot of people to understand the law in many regular criminal cases where all the details are available.
Someone with the likes of a machete or a hand grenade is distinctly a law enforcement problem rather than a national security problem and cannot justify secret mass surveillance or data collection.
9/11 only involved boxcutters, but I'd say that it presented a rather significant national security problem when those turned out to be sufficient to hijack planes and fly them into high-value targets. There's an assumption in some corners that since we're now more aware of the risks, no hijacking can ever work again, but that's not the case.
You're also ignoring the fact that many kinds of low-level terrorist activity aren't open to direct investigation by law enforcement. For example, suppose you pick up signals about a plot involving Mr X, who has not yet arrived in the US but whose phone number you have managed to identify. If he's in a country that's friendly to the US you might be able to get their law enforcement people to investigate him, but if not then it's logical to monitor who he communicates with for prophylactic purposes.
You're basically assuming they would have to redact everything. Just replacing names and addresses with tokens that don't identify the specific subjects would get you most of the way there unless the specific fact pattern is unique to the suspect, and then you can redact what is necessary to make it less specific.
In addition to that, once any given investigation is over the opinions and redactions that were held secret for the purposes of that investigation should be published, and it shouldn't be so easy to keep things secret for decades just by making a facile claim of national security.
>9/11 only involved boxcutters, but I'd say that it presented a rather significant national security problem when those turned out to be sufficient to hijack planes and fly them into high-value targets.
9/11 was not a national security problem. 9/11 was a mass murder. It was shocking but we have inflicted more damage on ourselves in our overreaction to it than the terrorists did in committing it. More have died avenging the victims of 9/11 than died on 9/11.
A national security threat is a nuclear bomb, or a plague, or a foreign government infiltrating high level government offices in preparation for some kind of Communist takeover. Something that would be a factor of 1000 worse than 9/11 and present an actual threat to the security of the entire nation. This watering down of "national security threat" to mean any jerk who might kill some people with an IED is just a ruse to rationalize the use of extremist measures against everyone rather than taking into account the proportionality of the threat.
>You're also ignoring the fact that many kinds of low-level terrorist activity aren't open to direct investigation by law enforcement. For example, suppose you pick up signals about a plot involving Mr X, who has not yet arrived in the US but whose phone number you have managed to identify. If he's in a country that's friendly to the US you might be able to get their law enforcement people to investigate him, but if not then it's logical to monitor who he communicates with for prophylactic purposes.
So get a warrant and conduct surveillance on him then. That's not the same thing as spying and collecting data on everyone "for prophylactic purposes" at all.
But I do agree with you - this can be applied to FISA courts' efficacy. But that's not entirely a rebuttal since it's equally valid in both cases. Saying that in response as a rebuttal would wrongly imply it's fair to demand a proof of the negative just because it's valid for FISA effectiveness as well.
In logic, it's fruitless to try to place the burden of proof on a negative statement. Example: "Prove there isn't an invisble ball of undetectable mass swirling in my hand."
What I was saying is a general rule that's valid across every subject in logical debate, and it is valid as a response for the sentence I quoted. What you're saying isn't a rebuttal to my point.
Wouldn't it be more accurate to say that it's fruitless to place the burden of proof on a statement which is syllogistically isolated from any statement known to be true?
That's unnecessary. We've already seen, via the leaks, that dragnet surveillance is happening. The NSA's claim that domestic communications are sacrosanct are put to lie by the revelations that the DEA and IRS are both using laundered NSA domestic surveillance data. We're now well beyond the need to prove that the government is in a state of sin with regard to the Constitution. The issue now is what remedies we'll pursue.
But, yeah, I agree. It remains to be proven that FISA is effective.
The FISC is called a rubber stamp because they almost never reject requests for a warrant. The government can be almost certain that no matter how outrageous its request is, FISC will say "yes." That they may be evaluating requests on a case-by-case basis is irrelevant if they always come to the same conclusion.
Given that they initially provide feedback when they have problems rather than outright rejection, and that the government can, if it isn't willing or able to address the feedback, simply withdraw the application, its not entirely surprising that they don't issue rejections, per se, nor does that necessarily indicate that they are acting as a rubber stamp.
We'd probably get a better picture of whether they were a rubber stamp if they were required to give a rejection with comments if the application wasn't sufficient on its face, and we had statistics on that.
How do you know the court has continued to rubber-stamp the activities it considers unconstitutional?
1. Whether or not that is binding precedent on other FISA judges.
2. Whether or not that program (or that aspect of that program) continued after the ruling.
3. If it did continue, whether or not it was modified to address the concerns of that one judge.
Or did you mean there is a technical provision somewhere that somehow mandates the existence of such loopholes?
[1] Sir Humphrey Appleby, Jobs for the Boys (e/o "Yes Minister"), Jay A and Lynn J, BBC; first broadcast April 7, 1980.
"In no case shall information be classified ... in order to conceal ... administrative error; prevent embarrassment ..."
See section 1.7(a) of http://en.wikisource.org/wiki/Executive_Order_13526
The issue is releasing an order in which they found some collection that the government engaged in under section 702 minimization procedures violated the Fourth Amendment, not that the program as a whole did so. Presumably, the situations in which it found that would not be the same ones for which it approved warrants.
Unable to be aware of the current secret case law history, addressing the FISA secret court, is it intellectually dishonest to still say, `Your Honor?'"