Skip to comments.From the "Trust 'Em?" files: a federal judge says faith in judicial "oversight" is misplaced
Posted on 06/15/2013 6:38:20 PM PDT by 2ndDivisionVet
This strikes me as, I don't know, important:
A retired federal judge warned Friday against blind faith in the secret court deciding the scope of U.S. government surveillance. During a panel discussion on constitutional privacy protection in the wake of a leaked Foreign Intelligence Surveillance Court decision that revealed widespread NSA data collection, U.S. District Judge Nancy Gertner stood up in the audience to counter the statements of conservative law professor Nathan Sales that secret surveillance requests are subject to meaningful judicial review. She cautioned:
"As a former Article III judge, I can tell you that your faith in the FISA Court is dramatically misplaced.
Two reasons: One The Fourth Amendment frameworks have been substantially diluted in the ordinary police case. One can only imagine what the dilution is in a national security setting. Two, the people who make it on the FISA court, who are appointed to the FISA court, are not judges like me. Enough said."
Gertner, now a professor at Harvard Law School who teaches criminal law and criminal procedure, was a civil rights and criminal defense lawyer before being confirmed to the federal bench in 1993. In an interview with ThinkProgress, Gertner explained that the selection process for the secret national security court formed in 1978 is more anointment than appointment, with the Chief Justice of the United States now John G. Roberts selecting from a pool of already-conservative federal judges those he thinks are most suited to decide national security cases in secret:
"Its an anointment process. Its not a selection process. But you know, its not boat rockers. So you have a [federal] bench which is way more conservative than before. This is a subset of that. And its a subset of that who are operating under privacy, confidentiality, and national security. To suggest that there is meaningful review it seems to me is an illusion."
Gertner, an attendee at the American Constitution Societys national convention, stood up during a panel discussion to make her comment after Sales, a law professor at George Mason University, suggested that individuals have some protection from excessive government surveillance because the Internet Service Providers who field government requests for information have the opportunity to challenge those requests before the secret court. This isnt a a paper tiger, he said. This is a court that engages in judicial review.
Gertner urged the audience to be skeptical about the courts oversight, both because of its severely conservative make-up, and its secrecy. The judge whose order was leaked by former NSA contractor Edward Snowden was Judge Roger Vinson, who authored the error-riddled federal court decision striking down the Affordable Care Act that even his fellow conservatives rejected.
Gertner also questioned the need for a secret court, noting that national security protections exist within the civilian court system:
"Im very troubled by that. When you get cases in court, in regular civilian court that have national security issues that have classified information, we developed a process whereby the parties would develop security clearances and it could be presented to the court without it being disclosed to anyone else. It is not entirely clear to me why a civilian court with those protections that is otherwise transparent couldnt do the job. Thats the way we did it before. Then we moved to this national security court. The notion that we have to have a conversation about major incursions on civil liberties and that we have step back and say we dont really know, we havent seen the standards, we havent seen the opinions is extraordinary troubling in a democracy."
The FISA court has rejected only .03 of all the requests it's had. I grant that in principle it is slightly better than the warrantless surveillance during the Bush years but in practice it seems to just be a rubber stamp. And anyway, secret courts are hardly the proper way to run a democracy, particularly when the government has decided it needs to monitor its own citizens through a process designed for foreign surveillance (which is the most confounding thing about all this, in my opinion.)
Again, oversight is not enough --- and will never be fully trustworthy. With a government that has the vast police powers and surveillance capability of the most militarized nation on earth, it's probably a good idea to have as many checks on its power as we can.
Article III judges are soooooooooooo last century.
Holder uses Administrative judges like the one
back from Egypt the DO’J’ used to SHUT UP (before
he said too much) the Boston terrorist that caused
the Boston Atrocity (sooooo enabled by Holder and Mueller).
Liberals and Dems usually know which judges to go to to get the ruling they want. If not, they just “shop” around until they find the right judge. Dems stick together. For them, it’s Party first, country last.
My comment is a question. The F in FISA stands for Foreign. How is the collection of billions of telephonic contacts here in the United States at all Foreign.
You should never trust judges or legislators or anyone else inside the Leviathan
Well, we have an unholy mess here.
Who specializes in dealing with unholy messes?
Congressional Oversight is NOT too.
Gertner was born in New York City and grew up in Flushing, New York, where she was a cheerleader, a member of the staff of her high school's literary magazine, runner-up for homecoming queen, and valedictorian of her class. >p> Gertner received her Bachelor of Arts from Barnard College in 1967 and a Master of Arts and a Juris Doctor from Yale University in 1971. While attending Yale, Gertner became friends with Hillary Rodham and met Bill Clinton.
Well, we have millions of illegal aliens hiding in the shadows. Since most of the federal powers today come from emanations of the penumbra (or shadows) of the Constitution rather than the actual text, and all sorts of aliens are hiding in those shadows therefore anything can be considered foreign. Well, except for foreigners which have to considered domestic.
Because the one ordering it is Kenyan/Indonesian?
I abandoned all hope of judicial review being a valid alternative to this thugocracy when Roberts allowed himself to be co-opted into supporting Ocare
Oh, and don't forget all the useful idiots in the "news" media.
Governments are political and controlling by nature no matter who is in charge.
That’s why we need checks and balances!
The most important check and balance is the people themselves, but they’ve been routed. Keep in mind that when most people say, ‘checks and balances’ they’re only thinking of the federal level and the common Executive/Legislative/Judicial distinction.
The most critical check and balance is between elites - federal v. state. The 17th Amendment and arguably the 14th and 16th, but critically the 17th unbalanced all of that and placed the states in a subservient position.
That the people in general at the local, state and federal level tolerate an executive that legislates and adjudicates tells you how far our education system has fallen.
State governors have allowed the federal executive and Congress to usurp powers that are theirs under the tenth amendment. To reverse this they must organize and fight to restore those powers.
The 10th is too slow and dependent on friendly federal courts. Better to undo the damage the 17th Amendment has done by repealing it. The states were meant to have a direct say in the management of the federal government via the Senate.
You make an excellent point. Election of Senators should be restored. They should be voted into office by state representatives. State governors should take back their tenth amendment power as well.