SCOTUS on secret courts

Now that we’re no longer under the Big Thumb of bulk surveillance [1] it’s a good time to reflect on the legal mumbo-jumbo being used to justify it. Wait. That was used. That’s all in the past now, and I’m happy that the US government has promised not to do any more bad things, will keep the moral high ground in situations of ambiguity, and realize that the government is the servant of the people and not the other way around. [2]

The recent legislation has added some “advocates” but it’s still not really a court; the folks they’re adding don’t have any real power. The proceedings remain secret and divorced from any meaningful oversight or appeals. It’s not a recipe that’s worked out before.

This is worth reading:

http://www.fed-soc.org/publications/detail/why-nsas-bulk-data-seizures-are-illegal-and-unconstitutional

I’ll call out:

In the seminal case on the role of federal courts, the Supreme Court ruled: “A case or controversy, in order that the judicial power of the United States may be exercised thereon, implies the existence of present or possible adverse parties whose contentions are submitted to the court for adjudication.”23 The absence of a genuine “case or controvery” means that the FISA Court is not a genuine Article III court, but is instead simply a part of the executive branch. The deprivation of property by such a court in secret proceedings justified by secret orders and constitutional rulings is the antithesis of the Due Process of Law guaranteed by the Fifth Amendment.

That case was in 1793.

Just because the administration has appointed a judge to do whatever it is that a FISA judge does doesn’t mean it’s a court. Apparently the judges take turns, and often “serve” from their homes, at all hours. So if a judge is in the bathroom taking a crap on the constitution while telling the NSA it’s okay to build even bigger data centers, it’s still not a court, no matter how big the piece of crap is.

I think I mixed a metaphor, but I don’t particularly care.

 

[1] Do I even need to have a snarky footnote about how likely that really is?

[2] /snark/

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One Response to SCOTUS on secret courts

  1. C'est moi says:

    Remember when Ronnie and Maggie were berating the soviet states for the lack of human rights? Now we’re being judged by processes and machines the leaders of the DDR would have killed for. I would ask “what happened?” but I know I’d end up asking “why didn’t I do something?”

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