Why the surveillance memo matters

[Caldera]

Nunes sends letter to Jeff Sessions today:

 

[Theo520]

Another perspective.

Is the Foreign Intelligence Surveillance Court Really a Rubber Stamp? | Stanford Law Review

I didn’t find it very convincing, did you?

Their argument seemed to rest on - the process is expensive and the rules are clear, so the FBI always get’s it right before going this route. All legal projects are expensive and the law is usually quite clear, yet prosecution never achieves this kind of success with the cases they prosecute.

The article did make a good case that all such wire taps are effectively being rubber stamped, so the underlying problem is broader than just the FISA courts.

 

[Caldera]

Hannity discussion on Nunes letter and more:

 

[Cathoholic]

Politicization of the FISA court is taking place.

Congressman Matt Gaetz from Florida, exposes this corruption rhetorically from the House Floor.

 

[dvdjs]

I didn’t find it very convincing, did you?

The essay in the Stanford law review brings up an import point that has not been part of the discussion here.
The expectations that one might have of “success rate” in adversarial court proceedings vs ex parte proceedings.

In the former, the prosecutor’s witnesses, evidence. and theory of the case are subject to cross-examination, contest and counter evidence, and counter-theorizing. The outcome of such cases are not certain, even thorough prosecutors tend to be conservative in bringing forward cases that they think they will win. In the latter, the the legal criteria for a successful application are clear; the Justice officials simply have to follow the legal rules and provide the evidence that meets the known requirements.

Is stands to reason that the success rate in the latter is much greater than the former and that it should approach 100%. The ex parte process is more like applying for a marriage license; the adversarial proceeding is more like making that case to a prospective spouse and family that you are the right marriage partner.

It may be interesting to consider the safeguard of having a devil’s advocate in the ex parte proceeding. If we has that structure, the success rate would likely go down. But we don’t. And, given the structure that we have, the nearly 100% success rate does not really suggest corrupt proceedings, as it would in adversarial proceedings.

 

[Theo520]

Is stands to reason that the success rate in the latter is much greater than the former and that it should approach 100%. The ex parte process is more like applying for a marriage license; the adversarial proceeding is more like making that case to a prospective spouse and family that you are the right marriage partner.

It was enlightening when I finally got around to read it, which is why I think such warrants are broadly rubber stamped.

I disagree with you on first blush, it’s nothing like a marriage - unless you advocate marriage by proxy when one party has no clue they are getting married. Of course nobody is standing up in the ceremony to object.

Mormons don’t get many complaints before they baptize/marry people in their temples either, which is likely because the target’s families aren’t aware of the action.

Shouldn’t the judge be advocating for the target of surveillance who is not present to represent their interests? I’m confident most of these targets could make a case if they were actually present, certainly more than .01%. I’m still convinced the judges are just rubber stamping the requests.

 

[dvdjs]

it’s nothing like a marriage - unless you advocate marriage by proxy when one party has no clue they are getting married.

Of course it isn’t. I said it was like applying for a marriage license. Having ducks in order, doing the paperwork.

Shouldn’t the judge be advocating for the target of surveillance who is not present to represent their interests?

Is that the nature of our proceeding or is that ultra vires?

 

[Inisfallen]

Shouldn’t the judge be advocating for the target of surveillance who is not present to represent their interests? I

No. Whatever your position on this memo, or this investigation, or President Trump, if judges start advocating for anyone or anything, our judicial system will no longer be the safeguard that it is (much more than guns) of our freedom.

Judges as advocates are something you see in civil law countries, but not in our system.

 

[Theo520]

No. Whatever your position on this memo, or this investigation, or President Trump, if judges start advocating for anyone or anything, our judicial system will no longer be the safeguard that it is (much more than guns) of our freedom.

Judges as advocates are something you see in civil law countries, but not in our system.

And I thought the judge was supposed to advocate for fairness or the civil rights of the party not represented. If it’s just checking FBI paperwork and not the merits of the request, it’s no wonder approvals are a rubber stamp

 

[dvdjs]

I thought the judge was supposed to advocate for fairness or the civil rights

I think that it is the law that secure the fairness and civil rights; the judge makes sure that the law is followed.

 

[Cathoholic]

Judge Andrew Napolitano: Memos, FISA courts, political games. Why should we care?
.
Andrew Napolitano By Judge Andrew P. Napolitano | Fox News February 7th
…
We remain embroiled in a debate over the nature and extent of our own government’s spying on us. The Foreign Intelligence Surveillance Act, which was enacted in 1978 as a response to the unlawful government spying of the Watergate era, was a lawful means for the government to engage in foreign surveillance on U.S. soil, but it has morphed into unchecked government spying on ordinary Americans.
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The journey that domestic spying has taken in 40 years has been one long steady march of massive increase in size and scope. The federal government now employs more than 60,000 people to spy on all Americans, including the White House, the Pentagon, the federal courts and one another. As well, the National Security Agency and the intelligence arm of the FBI have 24/7 access to the computers of all telecoms and computer service providers in the U.S. And certain politicians have access to whatever the NSA and the FBI possess… . .
. . .
. . .Raw intelligence data consists of digital versions of telephone conversations and copies of text messages, emails and other communications, as well as fiber-optic internet traffic (legal, medical and banking records, for example) and secret testimony and briefings intended only for the eyes and ears of those who possess a security clearance.
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The surveillance state is now here. . . .
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. . . Why should anyone care about these political games?
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The loss of liberty rarely comes about overnight or in one stroke. In a democracy, that loss is normally a slow process, often pushed along by well-intentioned folks who do not even realize until it is too late that they have created a monster. FISA is a monster. It began as a means of surveilling foreign agents in the U.S., and today it is used for surveilling any American at any time.
.
If you call a bookstore in Florence from a telephone in New Jersey, the government’s computers will be alerted. A federal agent will download the digital copy of your conversation, even though it was only about ordering a book. . . .

Judge Andrew Napolitano: Memos, FISA courts, partisan political games. Why should we care?

We remain embroiled in a debate over the nature and extent of our own government's spying on us.

www.foxnews.com

 

[Cathoholic]

. . . Then that communication may be used to justify surveillance of you whenever you talk to anyone else, in the U.S. or in any foreign country.
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This is blatantly unconstitutional, and it is often fruitless. And we know it can happen to anyone.
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The Supreme Court has ruled that electronic surveillance constitutes a search under the Fourth Amendment. That amendment prohibits warrantless searches and requires probable cause of crime as the sole trigger for judges to sign search warrants. FISA only requires probable cause relating to a foreign agent on one end of a phone call – a far lower standard – to trigger a warrant. The government has convinced the FISC that it should grant warrants based on probable cause of talking to someone who has ever spoken to a foreign person, whether an agent of a foreign government or an innocent foreign bookseller.
.
That judicially created standard is so far afield from the Fourth Amendment as to render it legally erroneous and profoundly unconstitutional. . . .

Judge Andrew Napolitano: Memos, FISA courts, partisan political games. Why should we care?

We remain embroiled in a debate over the nature and extent of our own government's spying on us.

www.foxnews.com

Also see. . .

 

[Theo520]

I think that it is the law that secure the fairness and civil rights; the judge makes sure that the law is followed.

So why do we even bother with defense counsel? (just making a point)

 

[Inisfallen]

So why do we even bother with defense counsel? (just making a point)

Because it is the function of defense counsel (and also of the prosecution, or of plaintiff’s counsel) to advocate for a client, or a position, or a reading of the law.

The judge’s function is to moderate the adversarial proceeding between plaintiff (or prosecution) and defense, and ensure that that process is conducted according to the law (both statutory and case law) of the relevant state, or of the United States.

 

[Theo520]

You missed my point.
There is nobody but the judge in the conversation that can advocate for the civil rights of the person being targeted for surveillance by law enforcement. It’s a completely lopsided discussion when only one side has representation, there is no need to bother with a Judicial review, let them focus on other things and just have a manager sign off on the wire taps.

 

[Inisfallen]

ou missed my point.

There is nobody but the judge in the conversation that can advocate for the civil rights of the person being targeted for surveillance by law enforcement. It’s a completely lopsided discussion when only one side has representation, there is no need to bother with a Judicial review, let them focus on other things and just have a manager sign off on the wire taps.

That’s how warrants work. Any kind of warrants. The application for a warrant is not an adversarial proceeding. The party seeking the warrant must satisfy the judge that the minimum conditions provided by law have been met.

If, later, there is a prosecution based on evidence obtained under that warrant, the defendant may contest it then (with the help of a lawyer who will advocate for him) and seek to have that evidence thrown out.

So there is still an opportunity for advocacy. Just not at that stage of the process, and not on the part of the judge.

 

[Theo520]

So the judge really doesn’t add much value, any trained manager could sign off.

 

[Inisfallen]

So the judge really doesn’t add much value, any trained manager could sign off.

The judge is a trained manager. A very highly trained manager.

Or do you really think someone who just had a brief training course, rather than a law degree and years of experience as a lawyer, would do?

 

[Theo520]

I think the FBI is filled with lawyers. Obviously the people making the submission get it enough that all their applications are approved.

You seem to be evading the fact that judicial review is just a rubberstamp.

 

[Inisfallen]

You seem to be evading the fact that judicial review is just a rubberstamp.

I’m not evading anything. If judicial review of warrant applications was nothing more than a rubber stamp, no court would ever have turned down a warrant application. Is that the case?