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Thread: NISCR affirms NISC - terrorist intercepts

  1. #1
    Council Member
    Join Date
    May 2008

    Default NISCR affirms NISC - terrorist intercepts

    First the acronyms:

    FISA = Foreign Intelligence Surveillance Act
    NISC = Foreign Intelligence Surveillance Court - special Federal District Court entrusted with FISA matters
    NISCR = Foreign Intelligence Surveillance Court of Review - special Federal Court of Appeals which reviews NISC decisions

    The case is titled “No. 08-01, In re: Directives (redacted text) pursuant to Section 105B of the Foreign Intelligence Surveillance Act.” The public opinion is also redacted in places.

    SCOTUSblog analysis is here.

    Intelligence wiretap power upheld
    Thursday, January 15th, 2009 9:38 pm | Lyle Denniston
    In a case that potentially could go to the Supreme Court, a special federal appeals court that operates almost entirely in secret has ruled that Congress did not act unconstitutionally in giving the government power to order telecommunications companies to aid in warrant-less national security wiretapping — eavesdropping mainly aimed overseas, but possibly reaching inside the U.S. and American citizens.
    The impact of the ruling on the legality of the National Security Agency’s highly controversial electronic eavesdropping operation was not very clear Thursday, since the specific federal law at issue has expired, the ruling was limited to the specific facts of the case, it technically applies only to cooperation directives and thus does not resolve any issues of privacy of those who are overheard on the taps, and the Court of Review went to some lengths to suggest it was ruling as narrowly as possible. Even so, the decision sought to remove any significant constitutional doubt about the intelligence-gathering that has gone on since at least late 2007. (While the specific law at issue has expired, a replacement law has authorized continuation of the government’s eavesdropping power.)
    The 29 page opinion is here.

    This opinion is more interesting (and important) in its method of deciding what issues were material and how those issues would be approached.

    First off, the court did not take on FISA's constitutionality using a broad brush approach - The "Isn't this a terrible statute" argument was not considered. Rather, the court looked at whether the law, as it has been applied based on the facts before the court, is constitutional in that aspect - and in that aspect only. Thus, the opinion is filled with caveats - i.e., we see that this or that might be a problem, but we are not going to decide that problem until it actually arises.

    Thus, this opinion cannot be read as a series of blank checks which NSA can cash at will; nor, is it what many have wanted to hear - unconstitutionality.

    Whether this decision will go up to SCOTUS is presently unknown. What the Obama administration will do in this area is also unknown.

  2. #2
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    Join Date
    May 2008

    Default Separation of Powers

    NISC = Foreign Intelligence Surveillance Court gets new offices. The old offices were in the DoJ building according to this article, which gives us a glimpse of our most secret court.

    Surveillance Court Quietly Moving
    Some Say Previous Location, in Justice Dept., Gave an Impression of Bias
    By Del Quentin Wilber
    Washington Post Staff Writer
    Monday, March 2, 2009; A02
    When the court was created by the Foreign Intelligence Surveillance Act, the only secure area available was in the Justice Department. That put the FISA judges in the unusual position of playing on the government's home field.

    The court, which has 11 judges appointed to seven-year terms by the chief justice of the United States, rents the space and supplies its own clerks and staff lawyers. One judge sits on the court at a time, in rotating week-long shifts.

    Serious planning to move the court began in 2005, when a new wing was added to the District's federal courthouse on Constitution Avenue NW. By 2007, workers were tearing out old grand jury rooms and redesigning the structure under rigid security standards, said Lamberth, now chief judge of the District's federal court. He said the move would come in March but declined to provide the exact day, citing security reasons.

    The FISA court's chief judge, U.S. District Judge Colleen Kollar-Kotelly, rarely grants interviews and declined to comment on the court's move. The court's spokesman, Sheldon Snook, also declined to comment. Dean Boyd, a Justice Department spokesman, declined to comment on the move, calling it an internal court matter.

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