Eliminate the United States Foreign Intelligence Surveillance Court (FISC)

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OBJECTIVES:

1) Recognizing the necessity of a re-write of The Foreign Intelligence Surveillance Act of 1978 (FISA) including thorough constitutional review of all operable amendments, definitions and procedures tightening, closing loop-holes, establishing of multi-level oversights, etc., we currently call for the Elimination of the United States Foreign Intelligence Surveillance Court (FISC) as in violation of the US Constitution Article III, Sections 1 and 2, for creating secret law, for acting as a non-inferior Federal Court, for a history of US agencies’ non-compliant practices and for allowing actions taken with Section 702 collected data, e.g., parallel construction, in violation of the Fourth Amendment and Section 702 of the Foreign Intelligence Surveillance Act (FISA) .

2) Delete all stored Intelligence Community (IC) communication records of US persons other than those obtained by specific warrants on specific named individuals in full compliance with the Fourth Amendment and Article III of the Constitution. There shall be no mass surveillance records maintained on any US persons nor any surveillance records of any US person other than obtained in strict compliance with the Fourth Amendment.

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BACKGROUND

The FISC and secret law

Upon learning that the FISC had been interpreting federal statutes and our Constitution in secret, congress passed the USA FREEDOM Act of 2015, Public Law No: 114-23, Sec. 402. Declassification of decisions, orders, and opinions. Section 402 mandated that “... a declassification review of each decision, order, or opinion issued by the Foreign Intelligence Surveillance Court [FISC] or the Foreign Intelligence Surveillance Court of Review [FISCR] ... that includes a significant construction or interpretation of any provision of law, ... make publicly available to the greatest extent practicable each such decision, order, or opinion.”

Despite the above law specifically ordering “... a declassification review of each decision, order, or opinion issued ...”, DoJ attorneys have refused to disclose any of the FISC significant opinions / rulings which occurred between 911 and the date of the USA Freedom Act, their position being that the law is not retroactive. That’s a period of secret laws, interpreting federal statutes and our Constitution, spanning about fourteen years and which are relevant to a wide range of surveillance activities.

There is no place either within the spirit of our Constitution or its wording to allow any federal court to issue findings held in secret from the very citizens for whom our federal government exists to serve.

The FISC operates in violation of the Constitution’s Fourth Amendment.

Fourth Amendment (underlining added): The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

On January 17, 2014, Obama directed that “The results of any [FISC approved] query are limited to metadata within two hops of the selection term [for instance name or SIM card] being used” and February 5, 2014, the FISC approved of this limitation. One hop away would be to the next set of direct links, persons, entities, etc., directly connected to the original two people of the captured communication. The second hop would allow picking up all communications from everyone with whom first hop communicated. Hence, this chain of expansion allows the capturing and storage of communications of vast numbers of US persons, without any warrants being issued, i.e., all violation of the Fourth Amendment. What makes this two hop rule even more destructive is that if one of the hops is to a government agency or for instance Google, then two hops is sufficient to include over a billion people with no warrants issued.

The new FISA Amendments Reauthorization Act of 2017 continues for six years the complete violation of every element of our Fourth Amendment. It does so by allowing the continuing collection of the private communications, e.g., telephone, emails, text messages, etc. of a US person when he or she communicates with a foreign target and warrentless collections of all other US persons within two hops. By this legislation the government bypasses all Fourth Amendment requirements of obtaining a warrant from a judge, including naming the US person, demonstrating to the judge probable cause that the US person has committed a crime, and specifying exactly what information is wanted and where it is to be collected.

The Parallel Construction violation of both Section 702 of the Foreign Intelligence Surveillance Act (FISA) and the Fourth Amendment.

Section 702 of the FISA allows the NSA to collect foreign intelligence from non-Americans located outside the United States. It is for the sole purpose of obtaining “foreign intelligence.” However, it has been and is being used to identify evidence of domestic US crimes of US persons and pass relevant information onto local law enforcement in violation of both the FISA and the Fourth Amendment.

The FISA Amendments Reauthorization Act of 2017 further allows the federal government to continue the practice of searching through such Constitutionally illegal warrentless search results of US persons’ communications to find evidence of any non-terrorist criminal violations. When these searches find evidence of criminal activity, sufficient details are then passed onto local law enforcement to allow the latter to gather sufficient information locally to obtain a local search warrant and proceed from there to prosecute. The latter part of the process by local law enforcement is called Parallel Construction, i.e., the construction of sufficient evidence collected locally without any reference to the original source of information collection by NSA via warrantless search of US persons, and then passed to local enforcement as the basis for their investigations. The fact that the original evidence came from a NSA warrantless search is not disclosed to the local court. Only the latter parallel construction evidence is cited to the court. The local court has thereby been misled by not disclosing the original evidence which served as the basis for local enforcement to find its evidence, i.e., the parallel construction.

The FISC is in violation of Article III, Sections 1 and 2, of the Constitution

Article III, Section 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The FISC has acted, not as an inferior court, but as a parallel court to the Supreme Court, making secret law of US statutes and the Constitution. The FISC does not appear to be included in Title 28 (Judiciary and Judicial Procedure) which defines the federal judicial system, e.g., Supreme Court, Courts of Appeals, District Courts, Court of Federal Claims, Court of Customs and Patent Appeals, Court of International Trade, i.e., no FISC. The FISC has been established and acts as a secret, independent, non-inferior federal court, in parallel with the US Supreme Court.

Article III, Section 2 (underlining added): “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, ...” All federal courts require the existence of an actual case, an actual controversy with two sides. It is called the case or controversy requirement. A federal court can Constitutionally only resolve a dispute between two parties. It cannot give an advisory opinion. A federal court cannot issue general warrants and appears not to have any Constitutional authority to issue search warrants unless such be a resultant of a two party case brought before the court for settlement. It can only resolve disputes between two parties under the specific subjects identified as constitutional within Section 2 as amended by Amendment XI. There is no constitutional basis for any federal court issuing warrants based on one side represented, in secret or otherwise.

Under US Code Title VIII, Supplementary and Special Proceedings, Rule 41, Search and Seizure, Federal Judges, usually Magistrates, have been given authority by Congress to issue search warrants. Such congressional action does not square with the Constitutional limitation on all federal courts to allow federal jurisdiction only to resolve two party actual cases and those which fall specifically within those areas defined within the Constitution. However, our Constitution has never stood in the way of congress passing whatever laws it sees convenient at the time. Issues brought before a federal court wherein only one party is represented are called non-adverse proceedings or ex parte practices, e.g., such as for search and arrest warrants, without requiring the presence of both or all of the parties. There is no Constitutional authority granted to federal courts for non-adverse proceedings. Only a Constitutional amendment can change that explicit requirement, and there has been none.

“In law, standing ... is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case.” - Wikipedia Standing means the right to appear before the court.

“The law of standing has its roots in Article III’s case and controversy requirement. The U.S. Supreme Court has established a three-part test for standing. The “irreducible constitutional minimum of standing” requires the plaintiff to establish:

First ... an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) “actual or imminent,” not “conjectural” or “hypothetical.” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.” -
http://www.federalpracticemanual.org/chapter3/section1

Constitutionally and in accordance with the Supreme Court, there has to be both a complainant and defendant meeting the federal legal standing requirements for federal court jurisdiction.

US Agencies History of FISC Violations

The 99 page FISC “Memorandum, Opinion, and Order”, issued April 26, 2017, signed by Rosemary M. Collyer, Judge, United States Foreign Surveillance Court, documented the experience of numerous violations by both the FBI and NSA over the years, with particular expressed concern of FBI violations going back years. Whereas, this report ended with FISC satisfaction of improved procedural promises submitted by the agencies, the report is proof of a history of significant slippage between what is expected in the way of federal agency law compliance and some actual practices, whether intentional or non-intentional.
https://www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf

BOTTOM LINE

1) Eliminate the United States Foreign Intelligence Surveillance Court (FISC) as in violation of the US Constitution, Article III, Sections 1 and 2, for creating secret law, for acting as a non-inferior Federal Court, for a history of US agencies’ non-compliant practices and for allowing actions taken with Section 702 collected data, e.g., parallel construction, in violation of the Fourth Amendment and Section 702 of the Foreign Intelligence Surveillance Act (FISA) .

2) Delete all stored Intelligence Community (IC) communication records of US persons other than those obtained by specific warrants on specific named individuals in full compliance with the Fourth Amendment and Article III of the Constitution. There shall be no mass surveillance records maintained on any US persons nor any surveillance records of any US person other than obtained in strict compliance with the Fourth Amendment.

 



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