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Thursday, June 3, 2021

Tilting At The FISA Windmill

H/T Jim.

What Is America’s Spy Court Hiding From the Public?

That's what David D. Cole, Jameel Jaffer and Theodore B. Olson want to know, and that's why they wrote the linked Op-Ed piece in the NYT. Well, they also wrote the piece so the rest of us would know they're asking that question, via a petition to the SCOTUS.

In case you're not familiar with these three legal musketeers, they're actually fairly prominent in the legal world:


Mr. Cole is the legal director of the American Civil Liberties Union. Mr. Jaffer is the executive director of the Knight First Amendment Institute at Columbia University and was a deputy legal director at the A.C.L.U. Mr. Olson was a solicitor general under President George W. Bush and is a member of the Knight Institute’s board.


What they're doing in their quixotic attempt to get to the bottom of exactly what the Foreign Intelligence Surveillance Court (FISC) is up to is this:


The three of us have different views about how expansive the government’s surveillance powers should be. One of us, as solicitor general of the United States, defended the broad authority granted to federal officials to track and intercept communications for law enforcement and intelligence-gathering purposes under the U.S.A. Patriot Act; the other two have been among that law’s most active critics. 

But we agree about one crucial point: The needless secrecy surrounding the surveillance court is bad for the court, the intelligence agencies and the public — and it is also unconstitutional. 

We said this to the Supreme Court in a petition filed in April on behalf of the American Civil Liberties Union, arguing that the public should have access to the surveillance court’s decisions. And in briefs filed with the Supreme Court last week, many others — including former intelligence officials, civil society groups and a major technology company — reinforced that point.


I happen to agree with the late Robert Bork (and others) that FISA is, in fact, unconstitutional. Our three legal heroes present the usual hagiographical version of what FISA was about:


Congress created the surveillance court in 1978 after a congressional committee found that the intelligence agencies had abused their surveillance powers in ways that violated Americans’ rights and jeopardized our democracy. The court was charged with overseeing certain kinds of surveillance conducted for national security purposes. In its original incarnation, its role was narrow. It authorized a few hundred wiretaps a year.


The fact is that FISA was a direct infringement by Congress upon the Executive's National Security powers. This infringement was done for purposes of political grandstanding and to get a whip hand over the president.

Things have changed a bit, since then. Since 9/11 the Deep State has gotten the whip back and is on steroids. Just ask Chuck Schumer--he'll tell you what the Deep State can do to its enemies. Those enemies can even include presidents, as we've learned. The fact is, if FISA were ever challenged and held to be unconstitutional we'd simply return to the status quo ante FISA--before Congress heroically stood up for our rights as citizens. The good old days, we're to believe.

However, to be clear, our three heroes are not arguing that FISA itself--the statute--is unconstitutional. They just want to be able to read more of the FISC's opinions than they're currently able to. Well, I suppose I'd like to, as well. Not that I imagine it will make much difference.

The reality is simply this. America is no longer a constitutional republic--at least not in any sense that would be recognizable to the Founding Fathers. 

That was all pretty much laid to rest by the beginning of World War 2. The New Deal put paid to that, creating a centralized federal government that has only continued to grow in its powers vis a vis its subjects. 

More to the FISA point, after the war the US--the only nation that had successfully prosecuted major wars on two fronts simultaneously--became ipso facto the American Empire. And so it remains. Up until 9/11 the two branches of the American Empire--foreign and domestic--remained (at least to most in-country observers) somewhat distinct. But with the GWOT the national security state and the administrative state with its domestic duties combined into an indissoluble unity. Ask yourselves--is there any significant part of the federal government that does not have some role in "national security"--which very much includes domestic security?

No world empire has ever run its affairs on the basis of transparency. There will always be some reason for the rulers to hide what's going on from the subjects--the public. Perhaps the FISC will publicly release a few more of its opinions, but sources and methods will always trump transparency.


21 comments:

  1. simply put...I want good guys going after bad guys and this is where it gets difficult, sigh. Sometimes I miss the clarity of the Cold War...of course, as long as I was on this side of the Iron Curtain. During my Balkan deployments, it was interesting to chat with former military members of the Warsaw Pact about those days and their perceptions of our military...and, vice versa

    It's a shame that no one has ever been able to figure out how to turn Russia into a functioning, honest state because they would make a great ally...their equipment may be faulty at times, but their professional soldiers are hard as nails IMHO, but hey, what do I know?

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    1. HH - thing is just who are the bad guys & who are the good guys these days? As we’ve seen, the GWOT was sold to us on either on a lie or an engineered incident & it wasn’t the first time: the Gulf of Tonkin Incident never took place. It was a false flag. I used to have nothing but contempt for draft dodgers but hey, I’m afraid they called that one right.

      World War I we had no business being in & us butting into that one only assured there would be a second war. When an army is fighting on & occupying foreign territory- France & Belgium - it’s pretty tough sell to make them believe they legitimately lost.

      Moreover, World War II - why were we fighting Germany? They never attacked us & FDR was actually waging an undeclared war against German U-boats in the North Atlantic. I know - the Bohemian Corporal screwed up when he declared war against us first; his mistake. He already had enough to worry about on the Russian Front.

      But here’s the thing: we would not have been invaded by either Germany or Japan, they simply didn’t have the amphibious capability (the successful German invasion of Norway was a one off). Operation Sea Lion never took place & it wasn’t just because the Luftwaffe couldn’t maintain air supremacy over Great Britain, plus the Royal Navy would’ve pounded any German force beneath the waves. The Kriegsmarine wasn’t large enough to protect such a force. So what was the point of the European war - save Europe from itself again?

      Korea is really where things started to become unglued; political concerns, hand wringing, & equivocating all got started here. MacArthur’s Inchon invasion was a brilliant stroke that was steeped in the fog created by his miscalculation that the Red Chinese would commit troops to the conflict. Once they did the war was virtually unwinnable @ that point so the U.S. Govt starts asking it’s servicemen to “Die for a Tie” while engaging in peace talks with the Communists & both sides play games with people’s lives as they fiddle & diddle.

      I bought in to the “Red/Blue” “Republican/Democrat” BS for far too long. Take Iraq - that was Shrub II. A “Republican”. What happened to the WMD’s? And Shrub II comes out & attacks Trump & says nothing about Obama with all the crap he pulled?

      Afghanistan? Whiskey Tango Foxtrot? A 20yr war & now we’re exiting with our tail between our legs just as the Brits & Russkies did.

      Only “good guys” I can discern are the regular Americans who get up, try to do their jobs & navigate through an increasingly hostile political environment without losing it & going postal. The people who Hollywood & the elite media establishment consider knuckle-dragging Neanderthals & have their elections stolen from them & are then told to sit down & shut up or they’ll be “canceled/de-platformed/fired”. Or worse

      You know, people like Ashli Babbitt?

      Said it in an earlier thread: the Michael Douglas film “Falling Down”: “I played by the rules. I did everything they told me to do & I’m the bad guy?”

      Boarwild

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    2. Yes, Hipp, i wonder two just how much, real conflict the US has w Russia. If we relinquished even a bit of our imperial intrusiveness we might find that most of our real national interests overlapped w Russia quite nicely. Europe? We don't need to ne in Ukraine. And it's far past time to keep coddling western EU states. Middle East? No, real conflict tbere. Russia isn't interested in wiping out Israel or promoting terror afaics. China? Major confluence of interest there. Old mental habits die hard but I don't see why we should be anything but neutral w each other.

      N2

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    3. Anon- my version of history reads a little different than yours, but this one sentence should really be examined by everyone in today's world, because it represents MacArthur's very flawed view:

      "MacArthur’s Inchon invasion was a brilliant stroke that was steeped in the fog created by his miscalculation that the Red Chinese would commit troops to the conflict. "

      MacArthur was a complete fool in this conflict, and the Chinese didn't 'decide to commit troops' to the fight...they had close to a million troops in position waiting to sucker MacArthur into an ambush. The North Korean army was only there to serve as bait to lure MacArthur in. Of course, MacArthur's answer to 'being fooled' (after he ignored a lot of intelligence) so bad was to nuke them.
      Anon II

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    4. Anon - the Inchon invasion was a brilliant stroke: it cut Korea in half &trapped the large majority of the NK forces down in the south pressing against the UN toehold in the Pusan Perimeter. They were effectively wiped out. The fact the MacArthur chose a) not to acknowledge that - by Nov 1950 - American units were running into Chinese troops b) ignore it is on his head.

      But the Chinese didn’t “sucker” MacArthur into coming up to the Yalu. He went there on his own volition. China didn’t want to see its bastard child North Korea go under which it was about to do.

      Boarwild

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    5. for anyone interested in what actually happened in Korea, start with a book called "Breakout: the Choisin Resevoir Campaign" by Martin Russ. Excellent read.

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    6. The only result of the Korean War was how poor the Chinese army performed. They were forced to fight mostly at night as US Air power smash them in day light. The only reason the cease fire was delayed was because of South Korea. China was also looking for a tie.


      Rob S

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    7. IF the ChiCom army performed so poorly, why didn't they lose? These were battle-hardened troops who had fought during WWII, then fought all the way across China and defeated Chiang-Kai-Shek, and then went up against the US. All of this from a less than third world system with ancient arms and no logistics or support. They were very battle hardened and required nothing, they were so poor and so used to privation. The ChiComs were fierce and went straight up against the US and fought to a draw. This was not publicized because the leaders thought the US was war-weary from WWII, and didn't want to provoke LeMay and MacArthur into demanding we just nuke everyone around the world who bothered us. It would be good for more to realize the history of it, though, for purposes of understanding the ChiComs. Some of them haven't changed, except to get the most modern systems and great logistics. Others have. Who will prevail?

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    8. A lot of the Chinese troops in Korea were ex nationalists.

      The us cut off support for the KMT, and Russia fully supported Mao. Shades of Vietnam. Mao during WW2 survived by avoiding combat with the Japanese. Then after the war the area the Russians took of China from the Japanese, Was given to Mao.

      The Chinese in Korea took huge casualties.

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    9. Anon @7:35, my first husband, now deceased, was a young Marine driving a truck loaded with wounded and dead Army and Marines (the Marines never leave dead and wounded behind) on the perilous move out of the Chosin Reservoir. Marines never call it a retreat. Swarmed and ambushed by Chinese on the road out, his truck cab shot up from top to bottom. He kept on going and was one of the first wounded returned to a US hospital in December 1950. Breakout is an excellent book…

      Never ask a Marine who was in Korea what they think about General MacArthur.

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    10. As a Marine brat, I was lucky enough to know a lot of the "Chosin Few" growing up at Camp Pendleton in the late 50s, early '60s. Those guys were some of the most ultimate heroes in history. Their story and the whole story of the Korean War was covered up very well by the then "Deep State" and the media, which makes it an excellent case study for today's world!

      This blog has a sophisticated audience, but seems woefully ignorant of what happened in Korea. That's not an accident...even without FISA to cover it up!

      Bebe, tip of hat and much respect to you and your late Chosin hero.

      MacArthur is the main reason Ike was warning us of the military/industrial complex!
      Anon II

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  2. "That was all pretty much laid to rest by the beginning of World War 2."

    I appreciate this statement, far to few recognize the instutional and systemic issues brought into play in the early 1940's. I would argue that no free society can exist where a Government holds the ability to hide information from it's citizens. FISA is simply 2000 miles down the road from a secret classification system that should never be.

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    1. "no free society can exist where a Government holds the ability to hide information from it's citizens"

      The Founding Fathers recognized the need for secrecy right from the beginning. The difference is the balance of power between citizens and government--that's what's changed.

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    2. The New Deal that FDR came directly from Fascist Italy. FDR had a bromance with Mussolini, which lasted until 1939. The New Deal was fascist Italy.


      Rob S

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  3. Right with you on that Mark , to the point I really think that if we're going to put the step-off point of Government weilding its power against its people at GWOT, I think then there should be a separate point, call it the hit the Turbo button with the advent of POTUS BHO. I think under the simultaneous cover (for him) and threat (to all white friend or foe) of playing race healer on the surface and fomenting anti-white racism under the surface (chronicled pretty well by Sundance) BHO "empowered" the Government against the people - putatively only those to the right of him but probably only putatively -- with politicized DOJ, IRS and most assuredly teaming up with Brennan to achieve some funamental trnaforming of the CIA and environments, politicizing the military -- all toward "woke" the Bull-whip of "Woke" culture , the spear tip is so-called social Justice and so-called Critical Race Theory. BHO was working it hard for 8 years and made a lot of progress, a LOT of progress, bringing traditional dems and marginally left leaning bureaucrats under the tent, radicalizing them without them even knowing it simply by capturing the party. Hilary was probably going to be good with favoring many of his policy preferences and general aim so he was probably setting up to go Svengali-lite, but then came the Trump haymaker. Certainly there was foreboding and angst with POTUS Trump but what really gave the "Resistance" its force and determination was BHO working the "government power" he cultivated -- fellow travelers especially among the lawyers it seems all too willing to make a travesty of the law to preserve the good image of the first black president of whom any bad thoughts equate to racism/hatred/white supremacy. Hence russia gate, impeachment, election fraud, covid - fraud. Trump as POTUS is de facto a White Supremacist because he came after and opposed the policies of BHO the First Black President. The neocons and Bushes and cheneys and RINOS out there are similarly cowed and form , for me, not so much a wing of the Uniparty as a Rump Party of Quislings (Barrs?) despicably tending to their own wretched patch of sell-out. And that goes for State Governors and election officials who claim to be Republican. What we will witness as audits continue and things are pressed forward is that all these suspect counties election positions will have been staffed largely by African Americans and any and all criticisms of their "work" will be labeled racist/white supremacist. Your State Legislators are going to be mostly white. We sorely need some African American individuals of character and persuasive power to turn this around -- if its up to white americans, it ain't gonna happen. BHO has seen to that. Mark A

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    1. James Lindsay is the man when it comes to Critical Theory. I highly recommend his book "Cynical Theory" if you want to really wrap your head around its ideological origins. He also posted an informative essay back in April: https://newdiscourses.com/2021/04/rise-woke-cultural-revolution/

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  4. Don't be so quick to accept the status quo of unbridled FISA abuses. We can and should demand better. I'm not so quick to throw up my hands and accept a police state.

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  5. Its been a crazy last couple of months with work so I haven't had much time to soak up your work, Mark. You may have already covered this FISA related work by TechnoFog.

    https://technofog.substack.com/p/us-govt-denies-fisa-liability

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    1. I didn't read technofog but I saw the story generally. What that argument represents is pretty standard pre-FISA national security law. That law was not repealed somehow by FISA. FISA simply set up a statutory process for implementing FI surveillance with a court administering the process.

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  6. "the good image of the first black president of whom any bad thoughts equate to racism/hatred/white supremacy"

    How clever. Under cover of "racism", he started (or at least escalated) a race war, and started exacting some revenge for his race.

    Did he himself dream this up, or is he a foil for the people behind him?

    On a lighter note, I noticed today a new TV series "Anne Boleyn", starring a black woman in the title role.

    Unbelievable. Does anyone think we'll have a bio-pic of MLK starring a white guy?

    Frank

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  7. For me, the genesis of something ( a group or an action ) must be attained to decipher the board so to speak. In this discussion, a couple of items. The first item-the discussion to foment WW1 was noted in the Carneighe Foundation papers in circa 1903. Second item- Both the ACLU and NAACP as well were born by the same group of Fabian Socialists. Supremee Court Justice Frankfurter, Roger Baldwin, N. Thomas, R.M.Lovett. and a few more. The ACLU to internally subvert our Court System over time, throwing a popular bone to the "white Shoe" beltway. The NAACP on the other hand, was born to agitate the Black Community, not agitate "for" the Black Community". As the the reading comprehension of my comment, I am not a consument writer, having
    made the escape from school a bit too early. As to the Gentleman who discussed Korea, it is my position that the friction and later rebuke to MacArthur gave Mao the sign ( supported by Russia ) to engage. The pre-McCarthy outed Communist elements in our Administration, were in pivotal positions at this time. Thank you all for the opportunity to comment. The "Norman Dodd" video from the 80's with Griffin as interviewer is a hidden gem - 52 minutes and change, and Frida Utleys works on the habit of MAO to sign treaties and then ignore them. Incremental success, so common today. Raven6

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