A friend of might received rather extreme abuse while working in a classified position. The only potential means he had to deal with it was finding a competent labor lawyer who also had clearance. Naturally, the easier course of action was to write off the experience. Secrecy and unquestionable authority breed contemptuous disregard for your fellow humans.
Yeah, "Nobody ever challenged this", most likely because of the high barriers to challenge, etc.
Basically, not only is FISA broken but a society that tolerates a "classified" area of work and information is doomed to have that secret area metastasize and suck the life out of it.
I think you're being downvoted for linking to your comments without explaining why they're relevant.
I would assume, though, given their scale, that someone at one of these companies has the necessary clearance to contest. I think FISA is being intentionally facetious, or rather technically. I find it impossible to believe no one has attempted, but find it plausible that the government has yet to give anyone standing to sue.
Finally, given the sovereign clause, I don't see why the government has to accept a lawsuit against them.
Sadly, in today's upper levels of government, the term "conflict of interest" has been shunted aside for varying reasons.
Also, secret court proceedings are not what one would expect from a nation which constantly cites "moral high ground" as justification for violating its mandate.
Imagine if the Watergate scandal had been squelched by citing "state secrets."
Goes without saying that the system is broken. But I'd imagine it's easier/cheaper to just hand over the data than challenge the request and get lawyers involved…
Can a receipient of a FISA court order even get their own lawyers involved?
Given the kind of hair splitting, finely honed definitions and word games going on in Congressional testimony, I wouldn't put it past FISA judges/spokesmodels/whatever to claim that nobody ever challenged an order when there's actually no procedure to perform such a challenge, and no attempts to challenge have even been recognized.
1. Yes, it's specifically allowed by statute to talk to your lawyer about it
2. The FISC judge is correct in his statement. For that type of order, their is a procedure, it's documented in both the statute and the rules, and has a documented appeals procedure that leads to the supreme court.
He's not a spokesmodel, he's a federal judge. While some small percentage are certainly political appointees, this one, and others, are more deserving of respect than you are giving them.
Your comment — particularly your final graf — reads to me like a big ol', "Don't hate the player, hate the game." And while, for some games, I think that's a completely legitimate attitude, I really have a lot of trouble swallowing it in this context.
As a Federal judge, he has tremendous power to effect change in the matters that come before his bench, and yet FISC is, to all appearances, a rubber stamp with a security clearance. To the extent that's actually the case, I don't think hating the player is unwarranted, as it's exactly that kind of player who has made — and continues to make, with every unquestioned encroachment — the game the bowl of suck that it is.
It's not really "don't hate the player, hate the game" at all. It's "don't be an asshole to a guy you've never met and have no idea about, and assume bad faith on his part".
FISC is not a rubber stamp, as explained in that very article.
As a federal judge, he is bound by the rules of the FISC court, and the legal statutes that enacted it and set the standards they must follow. He just went out of his way to say, in public: "Just FYI, you guys are more than welcome to challenge this. I believe you have the authority to do so, and here is the statute I believe grants you that authority". Instead of saying "hey, great look, even the main judge thinks we have a right to challenge this", y'all are jumping on him like he's lying through his teeth.
He has no right to challenge these orders himself. He can modify them, but only within the bounds of the law. As I said, his job is not to make law, but to be bound by the statutes that rule his court. Have you ever stopped for a second to think that maybe this is his way of trying to explain to people how to get this stuff shut down?
You know, instead of assuming he's just trying to lie to save face.
I like to give people the benefit of the doubt. Maybe he is lying to save face. Maybe he doesn't really give a shit. Most federal judges I know are better than that. I may not always agree with their ideologies or rulings, but just about every one i've ever met tries to do the right thing.
Whatever you may believe, they certainly aren't mouthpieces for any administration.
Hell, even his wikipedia page will tell you that.
First, where in what I said do you infer an accusation of lying? I never said, nor even thought such a thing. To the contrary, I'm actually rather thrilled to see someone that deeply involved in this nastiness stand up and say what he's just said.
That doesn't excuse his participation to date one whit, however. He's as culpable as anyone else who actively and willingly participates in the surveillance state for the fact that we have a surveillance state, he's directly and personally responsible for whatever abuses of the law have passed across his bench, and I'm willing to bet everything I have that such abuses have crossed his bench, and been approved by him.
Second, how exactly does one not characterize a situation in which, "In short, it appears that the government only submits applications that it knows will get approved—after having first gotten them modified to meet that approval," as more or less a rubber stamp?
"First, where in what I said do you infer an accusation of lying? I never said, nor even thought such a thing. To the contrary, I'm actually rather thrilled to see someone that deeply involved in this nastiness stand up and say what he's just said."
Parent implied he was lying, not you :) See " I wouldn't put it past FISA judges/spokesmodels/whatever to claim that nobody ever challenged an order when there's actually no procedure to perform such a challenge, and no attempts to challenge have even been recognized."
"and he's directly and personally responsible for whatever abuses of the law have passed across his bench — and I'm willing to bet everything I have that abuses of the law have crossed his bench, and been approved by him."
I doubt this highly. He's not going to approve things he believes violate the law. He has no reason to do so, and every reason not to. My guess is instead, you do not believe the current law is constitutional, which is not the same thing. It's not his place to rule on it. Not even because "just following orders", but for starters, because nobody has challenged it. Not because they didn't know, BTW, Verizon knew, Yahoo, knew, etc.
"Second, how exactly does one not characterize a situation in which, "In short, it appears that the government only submits applications that it knows will get approved—after having first gotten them modified to meet that approval," as more or less a rubber stamp?"
By this logic, almost every motion to almost every court in a real case is a rubber stamp. In larger cases, you generally don't submit motions without talking to someone first either, and making sure it will go over well, or you don't submit it.
Judges don't want to see motions, for example, that just piss on the other side.
Here, they modified the requests to conform to law. If they had been passed through FISC after not conforming to law, that would be a rubber stamp. How can you suggest that telling people "X is illegal, you'd can't do X", so that they don't submit the motion, is a rubber stamp. The idea of a rubber stamp is that it doesn't matter what you give them, they'll stamp it. Here, instead, they are doing exactly the opposite. They tell people ahead of time "we aren't going to stamp that", so nobody bothers.
> It's not his place to rule on it. Not even because "just following orders", but for starters, because nobody has challenged it.
Then he is still responsible for his role in it.
> By this logic, almost every motion to almost every court in a real case is a rubber stamp.
If you believe that, you haven't followed many cases. Motions gets denied extremely often. Not least because there is a general understanding that it is worth fighting them because they often get denied, but also unilaterally by the judge when the judge believes on party is going too far.
This is what is bizarre about the FISC and that makes it worthy of being called a rubber stamp. There's absolutely zero indication that they are providing anything remotely like oversight, other than making sure the paperwork has the right wording to let the judges wash their hands of the matter.
How often do motions get denied? Do they ever get denied? How many years go between two denials?
Never denying a surveillance request is a whole lot different than rarely denying. One is a rubber stamp, the other is a general tendency.
Beyond that, the circumstances (all of the judges appointed by one person, no opposing advocate, no eventual public release of information, no witnesses) do not lend themselves to anything other than abuse and injustice. You can argue all you want, but the circumstances surrounding FISA court will should cause suspicion in everyone.
"How often do motions get denied? Do they ever get denied? How many years go between two denials?
"
This is, as I (and the article) pointed out, completely and totally irrelevant to whether something is a rubber stamp, because the real question is "how many times do bad surveillance orders get through" not "how many times do things get denied".
No regular court would deny motions either if every judge or staff attorney had time to talk to you about your motions ahead of time.
You have not shown how the denial rate has any relation to anything. As i've argued, what actually matters is "how many illegal orders are getting approved".
> No regular court would deny motions either if every judge or staff attorney had time to talk to you about your motions ahead of time.
Yes, they would, because the interests of the parties, and the law, are often wildly at odds, and even when they know the judge will deny a motion, a party will often want to raise it because raising certain issues are important if you believe the judge is wrong and want to raise issues on appeal.
A court that does not deny motions is ridiculous on the face of it. It's pretty much unheard of outside of banana republic dictatorships.
Your entire argument is basically "current rules require it for preserving on appeal". Sure. If the FRCP/FRAP/etc didn't require that, can you think of another reason?
We aren't talking about opinions, or motions to decide the case of various forms that will produce such opinions, but just every day motions on requests for production or whatever (which is what FISC is dealing with).
I mean, this is in fact, the whole point of things like magistrate judges.
I'm willing to bet everything I have that such abuses have crossed his bench, and been approved by him.
Based on what, your spider-sense?
Second, how exactly does one not characterize a situation in which, "In short, it appears that the government only submits applications that it knows will get approved—after having first gotten them modified to meet that approval," as more or less a rubber stamp?
By using your brain. He's saying the government doesn't take the risk of submitting applications that might be rejected. That does not mean the judge just assumes the government's evidence is good, because the government would never submit anything else. A rubber stamp is where you just approve whatever comes across your desk by default.
Really, I don't think you understand what you're talking about here.
I have a tremendous amount of respect for everybody who is involved in this and is trying to do a good, professional job under difficult and onerous circumstances. However, this is also political, and, as the saying goes, you cannot make an omelette without breaking some eggs.
If we stuck to politically correct, anodyne, low-fat, impartial statements, we would never get anything done. The whole point of making comments is to exert pressure. To exert pressure, you have to throw your weight around, to engage in ad-hominem attacks and all sorts of underhanded sophistry.
It is unfortunate; I wish it were some other way, but you have to make a caricature of your position to have any impact whatsoever. I have said some pretty inflammatory things in the past: but does that mean that I would assault one of the targets of my vitriol if I met them on the street?
Of course not.
That would be rude.
Even more so, if I were debating the issue face-to-face, my position would be conciliatory rather than inflammatory ... but internet forums present an entirely different medium of exchange from civilised discussion, and, much like public speaking, the medium is a particularly partisan and divisive one.
In fact -- and this may be a contentious point given the current forum -- I think that the state should continue to collect this sort of information -- and indeed more of it. I think that there is a tremendous amount of social good that can be derived from a better understanding of how we function -- both as individuals and as a society. I also think that denying this information to the state will result in worse decision making than might otherwise be the case.
If you can sense a "but" coming, your instincts are serving you well.
But, however professional and well-vetted the individuals in authority may be, they are still human. And being human is all about being fallible. We pretty much suck at everything we try from the moment we are born to the moment we die. Some of us are better at hiding it than others, but that does not mean that the suck is not hiding in there somewhere.
So, by all means, collect all the information that can lay your hands on for everybody in the whole world, but please make sure that there are robust, physical processes in place to reduce both the impact of any abuses that may occur, and also the probability that those abuses might occur in the first place.
Of course they didn't challenge it, they had no motivation to do so. The whole thing was secret, handing over data was no big deal because no one was to know they did it in the first place. If it wasn't for various whistle-blowers over the years they would probably still be handing over data without comment.
To me, the judge's statement just reinforces the notion that everyone involved had little or no concerns over anyone's rights that were caught up in this huge net.
But now that it's becoming common knowledge that people's data get handed over, I wouldn't be surprised if challenges start happening. Especially when overseas contracts start drying up because no one in their right mind would store their data with a US firm.
"Chilling effect" is a very real & recognized legal principle. When The Government™ shows up at your door with near-infinite persuasive & prosecutorial resources, with nods towards teams of heavily armed men and bureaucrats with crates of red tape, telling you in no uncertain terms YOU WILL DO X, and reminding you frequently that this very meeting itself constitutes a National Secret™, with clear and implied statements that while you may have legal alternatives the slightest contact with anything construed as illegal (starting with the reply "no") will bring all this power crashing down on your corporate & private life, one does tend to comply - regardless of likely after-the-fact "well you could have done this" conversations.
So it goes with many Constitutional rights. You can fight for your rights, but "fight" isn't some lofty abstract term, it's "cause serious damage to another while they do the same to you, until one of you is persuaded by harm & further threat thereof to give up."
The only thing flawed about the argument that no corporation has ever challenged a FISA order is that it requires a corporation to challenge a FISA order.
Since when were corporations meant to be the representatives of justice? Since when have they been upholders of citizens rights?
Yeah, "Nobody ever challenged this", most likely because of the high barriers to challenge, etc.
Basically, not only is FISA broken but a society that tolerates a "classified" area of work and information is doomed to have that secret area metastasize and suck the life out of it.