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US Government Using Secretive FISA Rules to Spy on Journalists
Documents recently obtained by the Freedom of the Press Foundation reveal troubling facts about how the government is secretly using the Foreign Intelligence Surveillance Act (FISA) to spy on journalists. The documents were released as part of a Freedom of Information Act (FOIA) lawsuit filed by the Freedom of the Press Foundation and Columbia University's Knights First Amendment Institute. These newly declassified memos confirm suspicions long held by civil liberties advocates that the government is using and abusing FISA court orders to conduct intrusive surveillance on reporters they deem as "foreign agents" and on those reporters' contacts.
By using FISA, the Department of Justice circumvents traditional court systems that have long protected journalists from invasive and illegal spying practices. [...] Memos made public through the FOIA request reveal that it is highly likely that both the Trump and Obama administrations have spied on journalists they considered "foreign agents" and anyone with whom they may have been in contact.
(Score: 0) by Anonymous Coward on Saturday January 05 2019, @11:35PM (5 children)
Apparently they do, citizen.
(Score: 2) by Lester on Sunday January 06 2019, @11:36AM (4 children)
No, they don't.
They exist in nations that are democracies only in appearence.
(Score: 0) by Anonymous Coward on Sunday January 06 2019, @02:15PM (3 children)
In other words, they exist in every democracy.
I think democracy is like communism. Nobody can implement the pure ideal in a real government.
(Score: 3, Insightful) by AthanasiusKircher on Sunday January 06 2019, @04:48PM
Well, amazingly enough, the U.S. existed for roughly two centuries without a secret court. Sure, there have been cases where some documents in a case were sealed or partially redacted to the public. But an entire court operating in secret? The U.S. functioned fine without one for a long time. (Whether or not the U.S. qualifies as a "democracy" is a separate question -- it depends on what you mean by "democracy.")
What changed? Well, the FISA court has its roots in the Nixon scandal. Nixon (and some presidents before him) had been using the FBI and other agencies to order surveillance without oversight. The idea of the FISA court was to provide oversight for that process -- so rather than unilateral decisions made within the Executive Branch, there should at least be some judicial oversight with warrants.
Of course, we know what happened then. The FISA court became a "rubber stamp" for such actions anyway; the first appeal of the government where they were denied didn't happen for 24 years after the court started in 1978, so that tells you how lenient the FISA court was even before 9/11.
Perhaps it is impossible in the real world for all court documents to be released without redaction in all cases. But that's far different from having dedicated secret courts that exist permanently in secret. And perhaps even more disturbing and problematic with the FISA court is that its proceedings are basically all "ex parte," that is, without representation of the accused or those impacted by its proceedings.
I personally would argue that's an even greater concern than an occasional sealed case file in a court. (Even SCOTUS has various sealed or partially redacted briefs/documents before it frequently, though that number has gone up significantly in recent years.) At least the basic records of adjudication should ALWAYS be available for public review, and the Due Process requirement should allow an opportunity for those who are accused or affected by court actions to have a representative to defend themselves or argue on their behalf.
The Bill of Rights built in a number of phrases deliberately targeting against such secret actions (as had been common in, for example, the English Star Chamber). And while I'm not going to claim there weren't occasional absuses in the court system over the first 200 years or so of the U.S., by and large "secret courts" were not a part of the U.S. during that time.
It's a bit absurd and paradoxical -- and I daresay mysterious -- that SCOTUS continues to release occasional rulings that do rein in law enforcement warrants and surveillance, while the FISA court (who is appointed by the Chief Justice) just rubber-stamps massive surveillance.
Of course, the problem with an "ex parte" court is that it's difficult if not impossible for defendants to get standing to challenge something in court, which is partly the reason why a lot of this stuff never comes under review by SCOTUS.
(Score: 2) by Lester on Monday January 07 2019, @09:59AM (1 child)
No, they don't. At least in my country, Spain, there is no secret court. There are terrorism laws that allow more power to police, but sooner or later, they are accountable.
Every government wants the power and not being accountable. Democracy Governments are not different. That is what democratic institutions were made for: to control government. They don't always work and governments try to circumvent them and many times they success. But a secret court is not trying to circumvent discreetly democratic institutions, it is saying "Democratic controls are applied only when I want"
(Score: 0) by Anonymous Coward on Tuesday January 08 2019, @05:37PM
Are you sure that "things" don't "happen" because there is no secret court to authorize it? As in, this cannot be allowed to happen and get out in the open courts, so we'll do it but hide it anyway?
Given the relatively recent (historically), murderous, fascist history of Spain (Franco), I have my doubts that attitude doesn't still exist in certain pockets.