Monday, January 13, 2020

NOTICE: Limited Activity, FISA

For the last several days I've been preparing to participate in what is, for me, a major project. This will take place tomorrow, but I'll be preparing for it more intensively today. Thus, I may not blog at all today or tomorrow. I'm not sure whether I'll refer to this project on this blog.

When I return full time--ideally on Wednesday--I hope to address the matter of FISA, and in particular its basic constitutionality. Commenter TexasDude has written a number of comments that probably reflect commonly held views. For example:

TexasDude January 11, 2020 at 8:14 PM
The FBI, DoJ, NSA, and CIA need to be disbanded now.
They are all for the government, not the Constitution, let alone for the people.
They, along with many others in government, believe they, and only they, know what is right and correct.
I am tired of this.

And especially this morning:

TexasDudeJanuary 13, 2020 at 6:23 AM
"sysconfig" on a post by Sundance ar CTH about this gives a link to a NYT article from 2002 noting abuses under Clinton and W. This was before the NSA database, but they were building towards it.
Note the fact it is all the same thing ... FBI, etc, abuse FISA somehow many times, FISC judge writes critical opinion, FBI etc come with arguments and statements they will do better, judge smiles and goes away.
Also note how the article states the FBI asserts it needs more and expansive surveillance powers due to 9-11. In further support, they argue that one of reasons for 9-11 was their gun shyness due to a critical judge's opinion on their abuses.
Sundance believe this is an inherent fact of the system itself. It appears to be and was made worse by the Patriot Act and Obama.

I'm afraid that a lot of this is derives from non-reality based libertarian fantasy interpretations of the Constitution that lack any grounding in history. CTH, of course, is a major propagator of such simplistic views. It's a bit like Biblical interpretation that relies on a "plain reading" of the KJV--all we need to understand the Constitution is a copy of the document itself, which can be whipped out of our hip pocket any time its needed.

If only it were that simple! But it's not.

I have in the past referred several times to eminent scholars who contend that FISA is itself unconstitutional. Those who accept the CW of libertarian propaganda assume that repeal of FISA would put an end to government "spying" on We The People. However, what these scholars mean when they say that FISA is "unconstitutional" is that FISA is an unconstitutional infringement of the Executive's constitutional powers re national security. As a result, the reality is that repeal of FISA would lead to something a bit like "constitutional carry": government surveillance of any activity connected in any way with "foreign powers and their agents" would be put on steroids. We would, in effect, return to the constitutional status quo as of the Keith case (1972).

Again, none of this is simple, and especially not in the current environment of Big Data and almost unimaginable capabilities for data collection of all sorts. We have every reason to distrust government activity in the current environment, and especially with regard to government cooperation with political factions that control social media and search capabilities that have become in the nature of public utilities. The thrust of the constitutional scholars who criticize the FISA regime is that, by granting executive agencies pre-approval for their actions, the FISA regime essentially makes most policing of the intel agencies virtually impossible. But a return to the pre-FISA state of affairs will not be trouble free.

More later.


  1. The best description I have seen of the FISA law is that it legalizes Watergate.

    Rob S

    1. I'm not sure what that means, but FISA certainly embodies the liberal ideal of an Imperial Congress. Like so many other liberal "frauds" its a "sword and shield." On the one hand, liberals can use it as a sword to attack conservative presidents, on the other hand it has enough loopholes that a liberal president can be given free rein to use it to shield his political spying.

    2. At least the Nixon's campaign had the decency to use private "plumbers" to break into the DNC office and bug Larry O'Brien's phone (and whatever else they were actually getting up to.) More recent administrations have used the powers of surveillance state to spy on people using our own tax dollars and government employees to do it.

      Of the two, the latter is more outrageous, as it was done under color of law by the Obama Administration. Liddy and his plumbers knew damned well they were breaking laws, and didn't hide behind some act by Congress pretending it was legally predicated.

    3. I think you get nearer the nub of the matter, that many fail to understand.

  2. For what it's worth my thoughts on here and other places under the same nom de plume is more of an expression of frustration.

    Yes, things are complicated.

    I have no delusions about repealing FISA and FISC. They were a response to the evolution of technology and efforts to thart criminal actors utilizing such.

    Thing is, what is the score, especially today or within the last 20 years or so.

    It's one thing to tap a physical phone line or to try to tract burner cell phones. It is anorher thing entirely to preemptively gather non criminal communications to be mined later.

    Moreover, the history of abuse of American civil rights by the FBI starting with it's first head, J. Edgar Hoover, and the DoJ in conjunction with the other later created agencies, CIA from OSS, NSA, and DHS have out the United States into almost in a security state whereby nothing you do in life is not recorded, quantified, and then measured.

    This is a scary situation we are in.

    Spycraft in our country is as old as the Revolution with the Commander in Chief George Washington under the Articles of Confederation. Intelligence and counter intelligence is the same.

    My desire to abolish and start anew is not without precident except in the federal sphere.

    Local police agencies have been disbanded from abusing their authority by denying basic rights expressed under our Constitution. Other agencies have been under federal injunctions and review like the LAPD.

    What I do not want, but I fear is coming is another civil war. The last one was fought because the Democrats demanded the perpetrator of slavery under the excuse of state's rights.

    This one will he fought to just to be able to live without being scrutinized by our federal government, if it gets to that point.

    I am no libertarian by their own standards either by big L or little l. I have voted mostly Republican, with local votes for Democrats, and gathered signatures for H. Ross Perot to be put on the Texas ballot and gave him my vote.

    Yes, things are more complicated, but that does not mean it still has to stay the same. Even if Congress creates an Executive agency, this does not mean it has to be.

    FISA/FISC is just a relatively recent iteration. It is by no means the end of all abused if destroyed or changed.

    1. Please give forbearance for my spelling and grammer errors.

    2. TexasDude, I'm not intending to take after you personally. However, my contention is that your view, and that of many, that

      "FISA and FISC. They were a response to the evolution of technology and efforts to thart criminal actors utilizing such."

      is a dangerous misunderstanding of FISA. FISA was sought by the FBI in order to absolve them of responsibility for abuses. It has served that purpose excellently. It has also served as a basis for endless political posturing for the Legislative Branch.

      Be patient. There are distinctions to be made. This is not actually a Fourth Amendment issue.

    3. I did not take it as an attack even if my reply appeared that way.

      I wanted to further explain myself.

      I am university educated under an information systems degree. I rode the dot com wave in the 1990s working on projects that went worldwide. At the time, I noticed reports abut how the government was gathering header/footer info on discrete internet packets. Well, from actually working in such things, if you do that, you can easily have the data within those packets. The issue was how to justify to store along with computing storage problems. That has generally all been solved.

      Today, I work in law enforcement in the North Texas area. My original dream. I work day in and day out within the confines of the US Constitution and federal/state court opinion, along with state/agency policies. Those that do not do this are in the news and mostly prosecuted.

      This mess is large, complex, and convoluted. There is no easy fix while I have full faith many actors are trying (Trump, Barr, Nunes, etc).

      Thing is, I fear we have tipped over the precipice, crossed the rubicon, and are held in the singularity of a black hole. I hope and beseech any higher power to help, but I am not sure of any real help may actually ... help.

    4. I understand the justification, and perhaps, the need for something like FISA.

      But the privilege has been abused by every single actor in the game. Consequently, FISA must go, root and branch. Scott Johnson at PL feels the same. And he's no crazy.

      I will say one thing, and I've been saying it for a while: we need to make government operators and workers PERSONALLY liable for crimes committed, while on the job, against citizens.

      IOW, and for example, Jamie Gorelick belongs in prison, not living the life with $20 or $30 million in tax-paid largesse.

      So, maybe, maybe, I'd accept the existence of greatly weakened and modified FISA, if men like Clapper, Comey & Brennan actually have to worry about going to jail, or losing their homes and retirement, like Gen Flynn did, if they break the law. And break the law they did.

      Police officers are liable, aren't they, if they do something terrible?

    5. Titan, I believe you are under the misapprehension that it is FISA that justifies "spying" by the federal government. It is NOT. But I'll get into that later.

    6. To Titan 28's point about holding government operators liable for their actions, I have a tangent.

      California has passed laws that appear plainly unconstitutional. Of one of many is the ridiculous attempt to keep Trump off the ballot until he released his tax returns. CA lost in court.

      It sure riles me up when lawmakers do these kinds of things. I guess that the voters are the ones who have to hold lawmakers accountable for legislative abuses by voting them out of office.

      The female officer in Texas who shot and killed a man in Texas in his own apartment was held liable and is spending a lot of time in prison.

  3. As I have commented in the past, privacy is effectively extinct and has been for a long time. The hardware installation for cloning and archiving EC has its roots in the 1950s and exploded worldwide in the 90s. The internet and cellphone/Smartphone systems took it to a "whole nutha level" in the wake of 911, and now AI is needed just to interact with the databases in any meaningful way. There are just too many players and too much investment to ever think that this is going away, despite any future legislation or official acts of government.

    The only real public policy question worth addressing is "can these tools be policed effectively such that they are unlikely to be weaponized or otherwise abused?" And the answer is probably "sometimes, but not always."

    Furthermore, ancient wisdom teaches that the only realistic way to inhibit future abuse is to severely punish the malefactors that abuse the system. This is why we give murderers long prison terms.

    Is it likely that real punishment will occur? Hell NO! And the best evidence for this conclusion is the appointment of Kris to oversee the FISA abuse. Case closed.

    1. Kris appears committed to the FISA regime itself, which limits government accountability.

  4. Also, if I am mistaken on my premise, I am willing to listen and understand.

    This issue is huuuge.

    I will not comment so as to not bother while you do your project.

  5. Mr Wauck,

    I look forward to your new post. I did not realize you had already linked in a previous post to the article that mentioned Fisa would have made watergate unnecessary.

  6. ". . . government surveillance of any activity connected in any way with "foreign powers and their agents" would be put on steroids."

    I'm sure that's what many members of the Deep State desire. However, if there's enough will to eliminate the FISA court, I would think there would be enough will to not replace it with something similar or worse.

    The government should have to go back to public courts, rather than easily-abused secret courts, when they want to surveil a US citizen.

    ". . . all we need to understand the Constitution is a copy of the document itself, which can be whipped out of our hip pocket any time its needed. If only it were that simple! But it's not."

    That it's not that simple proves our liberty has been stolen from us. In a free country, we shouldn't need specialized expertise to understand the laws we live under and the rights we possess. Furthermore, the government shouldn't be able to derive or create "loopholes" in our constitution to justify infringing our rights, yet here we are.