This is America? Secret courts, no Fourth Amendment and magic pixie dust

The USA Freedom Act died in the SenateTuesdaynight. With it went a provision for a weak advocate to provide at least the beginnings of anadversarial position in the secret FISA court for more exotic requests. The measure would haveallowedthe FISC to consider viewpoints outside that of the government while still retaining the courts secrecy.

Even as that effort to do something to make the FISA court less like as Sen. Richard Blumenthal said during Tuesdaysdebate theStar Chamber, the British kings old secret court, failed, the government released atranscriptfrom a hearing at the FISA Court of Review, the appellate court to the FISC. The hearing considered Yahoos challenge to the Protect America Act, a precursor to todays PRISM program, which required the Internet provider to hand over customer data in response to government directives rather than warrants.

Some of the claims judges made in the secret hearing would be funny perhaps were meant to be if they werent so alarming, coming from a judge working in secret. For example,perhapsas a way of arguing the Fourth Amendment only requires searches to be reasonable, not require warrants, Judge Morris Arnold noted that the warrant clause is at the bottom end of the Fourth Amendment. As if sticking the requirement for warrants at the back end of a constitutional amendment made it optional.

Other commentswere downright troubling, as when Arnold suggested Yahoo hadnt been injured by the governments demand that it help it spy on their customers. Well, if this order is enforced and its secret, how can you be hurt? Arnold asked. The people dont know that that theyre being monitored in some way. Arnold continued, I mean, whats whats the whats your whats the damage to your consumer?

The most substantively outrageous comments came from Acting Solicitor General Gregory Garre. To dismiss any Fourth Amendment concerns about the American side of communications collected along with a target, Garre claimed incidentally collected Americans content is either destroyed and not used or disseminated. He then claimed there is no database that is taken from incidental collections.

That claim made it intoFISCRs final rulingto justify the courts finding that the incidental collection of large amounts of Americans data did not implicate the Fourth Amendment. The government assures us that it does not maintain a database of incidentally collected information from non-targeted United States persons, and there is no evidence to the contrary, the opinion read. On these facts, incidentally collected communications of non-targeted United States persons do not violate the Fourth Amendment. Even when that claim was first revealedfive years ago, it waspretty clear it was not true. Since then weve learned the government not only keeps that data, meaning it does, in fact, have thedatabase it claimed in secret it didnt have. Weve also learned the governmentsearchesAmericans names and email addresses, even before it has evidence of wrongdoing against them. The FBI does it so frequently, they cannot count how often they do.

Thats not the only gross misrepresentation the government told in the secrecy of Americas Star Chamber.

Later in the hearing, Garre pointed tothe order the government uses to authorizeits spying activities,Executive Order 12333, to prove that it did not spy on Americans overseas without conducting some kind of review that theAmerican is some kind of agent of a foreign power. He emphasized the longevity of the EO. It was issued in 1981, Garre said in 2008, and that is an order that has been followed. I dont think anyone disputes that its been followed. Garre offered up but did not deliver a discussion or explanation of the manner in which Section 2.5 has been carried out over the past few decades. Judge Arnold asked, Your main point is that this wasnt just something hoped [sic] up for present purposes; its been in effect for quite some time? Garre answered, Thats exactly right.

Only it wasnt exactly right.

AsSalon has noted, just six months before Garre made those comments, Sen. Sheldon Whitehouserevealedhow the EO had in reality been treated during the years it authorized a warrantless wiretap program. In fact, sometimeearlier in the Bush administration, DOJs Office of Legal Counsel, a department that interprets the law for the executive branch, had ruled that,An executive order cannot limit a President, Whitehouse read from language he got declassified to read before the Senate.There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order.Rather than violate an executive order, the President has instead modified or waived it. As described, the EO Garre claimed was so rock solid was actually closer to pixie dust.

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This is America? Secret courts, no Fourth Amendment and magic pixie dust