Skip to comments.Kafka’s America: Secret Courts, Secret Laws, and Total Surveillance
Posted on 07/30/2013 10:19:10 AM PDT by xzins
Logic may indeed be unshakeable, but it cannot withstand a man who is determined to live. Where was the judge he had never seen? Where was the High Court he had never reached? He raised his hands and spread out all his fingers. But the hands of one of the men closed round his throat, just as the other drove the knife deep into his heart and turned it twice. Franz Kafka, The Trial
In a bizarre and ludicrous attempt at transparency, the Obama administration has announced that it asked a secret court to approve a secret order to allow the government to keep spying on millions of Americans, and the secret court has granted its request.
Late on Friday, July 19, 2013, the Foreign Intelligence Surveillance Court (FISC)a secret court which operates out of an undisclosed federal building in Washington, DCquietly renewed an order from the National Security Agency to have Verizon Communications hand over hundreds of millions of Americans telephone records to government officials. In so doing, the government has doubled down on the numerous spying programs currently aimed at the American people, some of which were exposed by whistleblower Edward Snowden, who temporarily pulled back the veil on the governments gigantic spying apparatus.
As a sign of just how disconnected and out-of-touch with reality those in the Beltway are, National Intelligence Director James Clapper actually suggested that declassifying and publicly disclosing the government application was a show of good faith by the government. The order, submitted by the federal government and approved by the FISC, is set to expire every three months and is re-approved without fail. This is the bizarre logic which now defines American governance: it doesnt matter if we spy on you without your consent, so long as you know that were doing it, and so long as we give the impression that there is a process by which a court reviews the order.
Ironically, the seeds for this brave new world were planted in an attempt to reform the ludicrous mantra of the Nixon administration that if the president does it, its not illegal. In the aftermath of the Watergate incident, the Senate held meetings under the Church Committee in order to determine exactly what sorts of illicit activities the American intelligence apparatus was engaged in under the direction of Nixon, and how future violations of the law could be stopped. The result was the passage of the Foreign Intelligence Surveillance Acts (FISA), and the creation of the FISC, which was supposed to oversee and correct how intelligence information is collated.
Fast forward to the present day, and what we see is that the alleged solution to the problem of government entities engaging in unjustified and illegal surveillance has instead become the main perpetrator of such activities.
When FISA was passed in 1978, it provided for a court of seven federal judges from seven different federal circuits who would serve for seven years. The judges on the FISC are appointed by the Chief Justice of the Supreme Court and may only serve once. The USA PATRIOT Act, however, increased the number of judges to 11, and altered the standards under which the government could engage in surveillance.
Thus, what was ostensibly designed as a mechanism to protect the American people from unwarranted government surveillance became instead a bureaucratic mechanism to rubber stamp government applications for surveillance. Indeed, the Court is structured such that applications for surveillance are rarely ever denied.
If a judge were to reject an application, for example, that judge would have to immediately write a report detailing every reason for the rejection, then transmit the report to a 3-person court of review. If that court finds that the application was properly denied, it must also write a report, which is then subject to a writ of certiorari by the Supreme Court. However, no reviews are necessary if an application is granted. This bias towards approving applications has played out predictably over the history of the court: out of 33,949 total applications, only 11 have been denied. Out of those 11, at least four were granted partial warrants later.
Deference to government requests for surveillance has only been exacerbated since 9/11. Before the PATRIOT Act was passed, collection of foreign intelligence information had to be the sole or primary purpose of the surveillance. However, after the PATRIOT Act, collecting foreign intelligence information merely had to be a significant part of the surveillance. The PATRIOT Act also allowed for a roving wiretap, which meant that government agents no longer had to designate a particular number or line to be bugged. This has led to the government forcing telephone and internet providers some willingly and some not so willingly to hand over vast troves of information on American communications.
Unnamed officials familiar with the inner workings of the FISC have noted that the Courts mission has vastly expanded in the past few years, from simply granting warrants for surveillance to settling constitutional questions about surveillance in classified decisions, some almost one hundred pages long. For example, the FISC has gone so far as to determine that the Fourth Amendment requirement for a search warrant does not apply when it comes to the NSA collecting and analyzing data of Americans communications.
To make matters worse, the only party represented before the Court is the government, and the Courts decisions are rarely made public. Its unclear if the corporations which are readily sharing Americans communications data are even authorized to appear before the court. Appeals are rare, and none has ever made it to the US Supreme Court. Furthermore, customers of the big telecoms whose data is being collected by the federal government do not have standing to challenge FISC rulings.
In truth, the FISC has basically become a parallel Supreme Court, but one which operates in almost total secrecy. As the editorial board of the New York Times has pointed out, even if the Court is operating completely within the bounds of established law when approving hundreds of requests for surveillance each year, the public will never know because no one was allowed to make a counterargument.
The biases of the Court are exacerbated by the fact that since judges only serve seven-year terms, they are usually all chosen by the same Chief Justice of the U.S. Supreme Court. Currently, every single FISC judge has been appointed by Chief Justice Roberts. Furthermore, all but one are Republicans. Roberts also appointed all three members of the Court of Review, which hears appeals to FISC decisions. Thus, the Electronic Privacy Information Centers (EPIC) emergency appeal to the U.S. Supreme Court to end the NSA surveillance program is likely to fall on deaf ears.
Justice James Robertson, who served on the FISC from 2002 to 2005, has strongly condemned the power of the Court, claiming that it has become an administrative agency, which makes and approves rules for others to follow. Thats not the bailiwick of judges. Judges dont make policy. Yet in the bizarre bureaucratic nightmare we have created for ourselves, that is exactly what they do.
The runaround and circular logic of the courts, Congress, the intelligence agencies, and the White House calls to mind Franz Kafkas various depictions of bureaucracy gone mad, which have colored our civilizations understanding of the shortcomings of a government which is only accountable to itself. As Bertolt Brecht wrote, Kafka described with wonderful imaginative power the future concentration camps, the future instability of the law, the future absolutism of the state Apparat.
One of Kafkas most famous novels, The Trial, tells the story of Josef K., an ordinary middle manager who one morning awakes to find himself accused of a terrible crime a crime which is too awful for his accusers to speak of. While at times absurdly funny, The Trial is ultimately a frightening depiction of what it means to live under a regime which operates on a circular logic that prevents outsiders, including those subject to its rule, from understanding let alone challenging - the rules of the game, and who is making them.
Legal scholar Daniel J. Solove has expounded upon this metaphor, pointing out that:
"The problems captured by the Kafka metaphor are problems of information processing--the storage, use, or analysis of data--rather than information collection. They affect the power relationships between people and the institutions of the modern state. They not only frustrate the individual by creating a sense of helplessness and powerlessness, but they also affect social structure by altering the kind of relationships people have with the institutions that make important decisions about their lives."
Josef Ks plight, one of bureaucratic lunacy and an inability to discover the identity of his accusers, is increasingly an American reality. We now live in a society in which a person can be accused of any number of crimes without knowing what exactly he has done. He might be apprehended in the middle of the night by a roving band of SWAT police. He might find himself on a no-fly list, unable to travel for reasons undisclosed. He might have his phones or internet tapped based upon a secret order handed down by a secret court, with no recourse to discover why he was targeted. Indeed, this is Kafkas nightmare, and it is slowly becoming Americas reality.
And I understand they have a "secret interpretation" of the law.
As the article says:
We now live in a society in which a person can be accused of any number of crimes without knowing what exactly he has done. He might be apprehended in the middle of the night by a roving band of SWAT police. He might find himself on a no-fly list, unable to travel for reasons undisclosed. He might have his phones or internet tapped based upon a secret order handed down by a secret court, with no recourse to discover why he was targeted. Indeed, this is Kafkas nightmare, and it is slowly becoming Americas reality.
Perhaps the citizens should convene a “secret grand jury” and a “secret court” to try Hussein and Hillary on charges of TREASON in the Benghazi matter.
Instead of the government living in fear of the people and thus always doing their bidding, it is now powerful enough that we must fear it and do it's bidding, or fear the consequences of IRS audit, FBI investigation, and the government's propaganda arm (the "news" media) spreading gossip info about you (true or not, they don't care).
Tell the idiots who defend this system ONE thing. The Muslims won!
America as a nation plods on, but America as an idea died after WWI.
[And how we burned in the camps later, thinking: What would things have been like
if every Security operative, when he went out at night to make an arrest, had been
uncertain whether he would return alive and had to say good-bye to his family? Or
if, during periods of mass arrests, as for example in Leningrad, when they arrested
a quarter of the entire city, people had not simply sat there in their lairs, paling
with terror at every bang of the downstairs door and at every step on the staircase,
but had understood they had nothing left to lose and had boldly set up in the
downstairs hall an ambush of half a dozen people with axes, hammers, pokers, or
whatever else was at hand? After all, you knew ahead of time that those bluecaps
were out at night for no good purpose. And you could be sure ahead of time that
you’d be cracking the skull of a cutthroat. Or what about the Black Maria sitting out
there on the street with one lonely chauffeurwhat if it had been driven off or its
tires spiked? The Organs would very quickly have suffered a shortage of officers
and transport and, notwithstanding all of Stalin’s thirst, the cursed machine would
have ground to a halt!
THE GULAG ARCHIPELAGO - Chapter 1, PAGE 14 - Aleksandr Solzhenitsyn
The federal government jealously guards its power over us. It will not easily relinquish the power it has gained over us, for it is now a powerful, living entity all on its own.
Well said, jeffc! The feral government has declared its independence from us, the people. I believe the time is at hand to let it go its own way. I'm sure we can get along without it.
You’re on the money, Jeffc. We’re way past the camel with it’s nose in the tent, with the government having its foot in the door.
We are at the point where people will knowingly change their behavior out of fear of the government.
And now that they arguably have “everyman’s” voice, text, email, internet communications, and all of his movements and financial actions, who is going to be willing to step forward and challenge these people? They know no one is perfect, that they can slime anyone and jail just about anyone.
Go to liberal sites, and you’ll surprisingly find they’re in tune with the right on several issues. The NSA surveillance state is one of those instances.
My own representative, Tom Cole (R), voted against the Amash amendment which would have stopped NSA domestic surveillance. Rep. Cole is a reliable vote for the GOPe, but the important point is our leaders in D.C., both Republicans and Democrats, have zero respect for the US Constitution.
4th Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
It doesn’t take a legal expert to realize the US Constitution was written to limit the federal government, not We the People. The 4th is exceptionally clear, but if there’s doubt, that doubt has to go to the side of restricting government.
I think this is one of those issues where both liberals and conservatives can agree. People need to understand the technologies, both hardware and software, are rapidly being created that can track virtually every last aspect of life, from your genetic makeup to everywhere you go. They’ll soon know if you adjust your thermostat a degree lower in the Summer. Seriously.
There’s plenty of computer processing power available to constantly collect and sift data on every last American. Most of it doesn’t even require human interaction any more. A human only needs to make sure the programs are kept running.
Exceed the speed limit occasionally? Plan on getting fined. Roll through a stop sign once in awhile? Pay some more. Eat fast food more often than you should? Watch your insurance rates rise or be denied a medical procedure. Run your thermostat too low? Pay a premium on your electric bill. All of this is entirely possible if we don’t nip this domestic surveillance crap in the bud.
(Everyone say "FU!" to the NSA!)
So true. And if anyone thinks electing a GOP president will change that they are in for a terrible disappointment.
These agencies operate on their own through unelected beauracrats. The only way to stop it is to shut them down completely.
That is not going to happen without a you know what so we will all still be ranting about this stuff when President Rand Paul or President Ted Cruz is in office. President Paul/Cruz will be publicly railing agains’t abuses by the TSA but the good old TSA will still be putting its hand down your pants.
Let me take speculation one step futher and predict that when and if both houses of Congress are back in GOP control we will still have the TSA with its hands down our pants, EPA will still be shutting down power plants, borders will still be wide open and the DOJ, FBI, NSA etc will still be using the Patriot act to listen to your phone calls and read your emails. The 30,000 drones will be flying overhead watching everything you do.
Why is that you may ask? The answer is that the Republicans love power as much as the Democrats do.
I fear that any true conservative that does make it past the media enema and gets elected if he/she is too pronounced in neutering the federal government and actually makes headway will post haste suffer an accident.
I’ve not heard _one_ major blogger or news system report the most relevent problem with USG/NSA spying:
If elements of USgov. have everything all citizens have expressed upon the Internet&phone lines, this would include the law enforcement (FBI,CIA,local) personnel, agency officers (EPA,State and other Depts.), govenors, judges and congressmen. This clearly enables parts of USgov to control via blackmail etc., others in and out of gov:
Maybe key legislative votes and key judicial decisions are bent this way...
Maybe top generals and high level officials are forced to resign, lie or retire this way...
Maybe top law enforcement is told to stop looking for criminals in high places...
First off, a strong President (a Reagan, if we could be so lucky). Then, he would have to reorganize all the bureaucracies so they answer to him and his staff. Move people around to different places and different jobs so as to break up the liberal chummies working together to advance the liberal doctrine and inhibit any conservative tendencies. Fire anyone who doesn't do their job as instructed (downsize everything, for a start).
IDK, though. I still believe it can be done, but, like anything as massive as our feral government, you have to start somewhere and the best place to do that is from the inside.
It doesnt take a legal expert to realize the US Constitution was written to limit the federal government, not We the People. The 4th is exceptionally clear, but if theres doubt, that doubt has to go to the side of restricting government.
I have told people everywhere this over and over (but I'm not blue in the face - yet!). They have been brainwashed by the publik skoool system for so long, they don't recognize it for what it is nor do they see the the dangerous ramifications. I guess as long as they get their EBT cards and Obama-phones, they don't care (bread and circuses!).
A lot of Americans simply don’t understand how powerful the technology has become. Like I wrote earlier, the Orwellian state can be easily imposed, and it doesn’t even have to be a human on the other side of your TV monitor. Computer algorithms never get tired, and they can constantly sift your personal data, meta or otherwise. It’s not like the NSA wants this metadata for no reason at all. There’s a lot of information to be gleaned from it.
Also, Orwell couldn’t have predicted all of the other things besides your TV monitor that can be tracked by a Orwellian state. Everything from refrigerators to thermostats are joining the networked world. As some idiots are fond of saying, if you have nothing to hide, you don’t need to worry about privacy.
What they don’t understand is just how much information is readily available and just how badly it can be used against people. Fact is, there’s no such thing as an innocent citizen in this day of laws for everything. The law can and will be used selectively against anyone who dares raise their head.
The tools and technologies are there—now! All it takes is someone to throw the switch, and we’re enslaved. I believe that’s what Snowden was getting at. Even if government isn’t using these weapons against Americans at this point, it’s building the capability to use them in the future. The only thing restraining them is their good will, because we KNOW they don’t care one whit for our constitutional liberties.
Yes if we got someone who was dedicated enough and didn’t care about four more years. I’m not holding my breath.
The Fourth Amendment guarantees my house, papers, and effects, will be secure against unreasonable searches and seizures. The argument has been made that the government has not violated the Fourth Amendment by "merely" recording a conversation until someone has listened to it. Yet that conversation is private, it is something that belongs to the two people in the conversation, with the communications services paid for by one of them. Taking possession of the contents IS a taking of property every bit as real as entering my home, rifling my file cabinets, and making copies of everything, whether anybody has read them or not.
Hence the mere EXISTENCE of an infrastructure capable of storing every conversation, email, and bank transaction IS a systematic violation of law. The matter of law can simply be ignored, but physical access to the data cannot.