Secret U.S. court OKs electronic spying

November 19, 2002 2:29 AM

Secret U.S. court OKs electronic spying Big Brother much? John Ashcroft is well on his way to becoming the next J. Edgar Hoover, or worse. The government can already secretly spy on what books we're reading, thanks to the Patriot Act. Previous MeFi threads have covered the evils of Total Information Awareness and how it makes everyone a suspect. Now a "secret court" gives the government a green light to spy while the ACLU tried to figure out if there is any recourse.
posted by Dok Millennium (39 comments total)

Hah! Let's see them try to call me a paranoid alarmist now!
posted by Dillonlikescookies at 3:55 AM on November 19, 2002

Incidentally, don't just sit there -- contact your Senator today.
posted by Dok Millennium at 4:06 AM on November 19, 2002

Calm down. Remember, governments are benign entities geared only towards the personal, social and economic development of their people. A government will never use such powers in any way other than to thwart the evil plans of those who would violently interrupt each citizen path to happiness. Nothing to see here. Turn on the TV and watch a sitcom, go to the Mall buy something, go the the church and pray for the well-being of those in charge of these grave times. Do not worry, let those wise people in power worry for you.
posted by nkyad at 5:41 AM on November 19, 2002

All snarkiness aside, this is the scariest part, I think:
Civil libertarians said they were alarmed by the ruling, the public version of which was censored for security reasons.

So, now the public release of court rulings can be withheld on grounds of national security? I don't think I need to spell out the implications....
posted by Fabulon7 at 5:45 AM on November 19, 2002

The government can already secretly spy on what books we're reading, thanks to the Patriot Act.

Ugh. No, it can't. We've been over this several times. While there are certainly issues regarding civil liberties, it's simply not true that the government can "secretly spy on what books we're reading" -- unless by "we" you mean individuals who are suspected terrorists and for whom the government has gone before a federal judge and presented sufficient evidence to obtain a court order. But somehow I don't think that's what you were implying. Attack the law for what it is, not what it's not -- that doesn't help your argument.
posted by pardonyou? at 6:14 AM on November 19, 2002

unless by "we" you mean individuals who are suspected

OK, I guess this only applies to people who are suspected of crimes. That could never be me, or you, or anybody of any worth. That's a relief!
posted by luser at 6:31 AM on November 19, 2002

It ruled that Ashcroft's proposed procedures, "if they do not meet the minimum Fourth Amendment warrant requirements, certainly come close."

Ah, the little-known "horseshoes" rule of constitutional jurisprudence.
posted by ook at 6:34 AM on November 19, 2002

I don't see how even the republicans on this board can stomach this..

And this is really just the beginning..
posted by eas98 at 6:38 AM on November 19, 2002

The fun part about secret courts and sealed warrants is I can never actually know what the evidence was that got the judge to approve the warrant in the first place. So much for the 4th, 5th and 6th, neh?

But after all, if you have nothing to hide, you have nothing to fear-- right?
posted by Cerebus at 6:46 AM on November 19, 2002

And after all, we know the FBI would never, ever make stuff up in order to get a warrant.

Oh wait--

The court identified 75 instances in which the F.B.I. had abused its authority, in some cases by making false statements in eavesdropping applications.

Oh. Well, still, if you've done nothing wrong you shouldn't care, right? Only criminals don't want the government peering into their lives in order to make hem feel all safe inside.
posted by Cerebus at 6:49 AM on November 19, 2002

No, like I said, I have concerns about the law and about the secret court. My point was simply that it's not true that "the government can already secretly spy on what books we're reading." That statement inaccurately suggests that the government could go in to my -- or your -- local library and simply say, "hey, we want to see what pardonyou? is reading. Please turn over his records." Like I said, challenge the law for what it is, but don't exaggerate your claims. Sometimes I wish this little gem by Strunk & White could be plastered to the top of MetaFilter:

Do not overstate. When you overstate, the reader will be instantly on guard, and everything that has preceded your overstatement as well as everything that follows it will be suspect in his mind because he has lost confidence in your judgment or your poise. Overstatement is one of the common faults. A single overstatement, wherever or however it occurs, diminishes the whole, and a single carefree superlative has the power to destroy, for the reader, the object of the writer's enthusiasm.

posted by pardonyou? at 6:59 AM on November 19, 2002

Click here to fax your representatives about your opposition to the privacy bill. It's free, and maybe if enough people take action, our representatives will take action as well. This campaign is in response to the security bill discussed here ("You Are A Suspect" NYT article by Safire).
posted by VulcanMike at 7:28 AM on November 19, 2002

ook: the quote was taken somewhat out of context in the article. The full paragraph says:

Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.

Still somewhat questionable reasoning, IMO, but not quite as dismissive of the Constitution as the article suggests. The full opinion [PDF] makes interesting reading, as does the NYTimes article, which is far better than the somewhat misleading Cnet article in the FPP.
posted by boltman at 7:36 AM on November 19, 2002

My point was simply that it's not true that "the government can already secretly spy on what books we're reading."

Point taken. Problem is, how will you know? You never will, with any certainty. Librarians and booksellers are forbidden to discuss any requests for information--even with their own colleagues or co-workers. Requests for information might never be made to any library or bookstore you've ever been in. But you'll never know.

This culture of secrecy is the most dangerous thing. The sort of society Americans are used to having can't exist beside secret courts, secret investigations, secret internments. And ultimately, it doesn't matter if any of those things really happen or not, if the population begins to believe they are happening. To some degree a culture of secrecy must inevitably become a culture of paranoia and mistrust just because you'll never know if your fears are only that--fears--or realities. And there won't be any way to know with certainty. Trust is a delicate thing and once it's gone ---
posted by octobersurprise at 7:53 AM on November 19, 2002

I'm wondering which part of "[t]he court identified 75 instances in which the F.B.I. had abused its authority, in some cases by making false statements in eavesdropping applications" is overstating the case against the PATRIOT act. The FBI has lied to a secret court to obtain sealed warrants with no effective oversight, which denies the right of those surveilled to question the methods used against them.

Alien and Sedition Acts, anyone?

The rest of what I was saying was just dripping sarcasm.
posted by Cerebus at 7:56 AM on November 19, 2002

On behalf of the Academy, I'd like to formally nominate this FPP for the official "Sky Is Falling" post of the day. Thank you.
posted by MidasMulligan at 8:41 AM on November 19, 2002

Click here to fax your representatives about your opposition to the privacy bill. It's free, and maybe if enough people take action, our representatives will take action as well.

Yeah, because it worked so well with the "No War on Iraq" thing...
posted by zekinskia at 8:56 AM on November 19, 2002

pardonyou : i think you're being a bit disingenuous in your interpretation of the sentence "the government can already spy on what books we're reading."

this doesn't strike me as overstatement. i think that about 95% of the people who come here and read that sentence understand that the interpretation you offered is not the case: they know john q. fieldagent can't just walk into the local public library, flash his badge, and look at the records of check-outs.

if i say "the government can listen in on your phone conversations" or "the government can stop your car and search it" will you not understand that in the one case they need warrants and in the other that deliciously nebulous thing known as probable cause?

please, give other people credit for being at least as sharp as you are. ;-)
posted by lord_wolf at 9:01 AM on November 19, 2002

John Ashcroft is well on his way to becoming the next J. Edgar Hoover

Hoover was a complicated man. I'd say that John Cameron Mitchell is as close to being the next J. Edgar Hoover as Ashcroft is.
posted by putzface_dickman at 9:04 AM on November 19, 2002

The government is just centralizing all the power it had before. We're seeing the consequences of increased federal police power.

My only question is, once the war with terrorism is over, will we be able to live in a society that values liberty?
posted by insomnyuk at 9:07 AM on November 19, 2002

Just a little note from a legislative staffer: if you want your communications to your senator or other elected representative to be noticed, DO NOT EMAIL THEM! Write a letter or make a phone call - emails are erased by the thousands without ever being read, and all they do is slow down the District or Capitol Office manager's computers and overload their inboxes so much that they call the Legislative Data Center and have the mail purged. I've even heard stories of people setting up filters to autopurge mail generated from online petitions and automated comment systems. Get out paper, pen, an envelope and a 34¢ stamp - it's not a big investment.
posted by luriete at 9:16 AM on November 19, 2002

boltman: You're correct that it's not quite as simple as that one-sentence quote implies... and I was mostly just trying to make a funny.

But the "close enough" language appears several times in the full decision, both with respect to surveillance and to the question of warrants: it's tempting to include a long list of cites, but you can see 'em as well as I can, I'm sure.

To paraphrase your wider quote: 'This doesn't quite fit the fourth amendment, but we're going to allow it anyway because of the potential threat to society (even though we agree with the lower court that the threat shouldn't be the regulating factor here.)' The sentence you highlighted is a red herring: nobody's disputing that the government can conduct foreign surveillance; the question is whether the 20 years of precedent maintaining a separation between intelligence and law enforcement should be tossed out the window.
posted by ook at 9:20 AM on November 19, 2002

My only question is, once the war with terrorism is over...

insomnyuk made a funny!
posted by darkpony at 9:34 AM on November 19, 2002

Most Americans are probably not bothered by these events because, well, they're not Muslim. (Similar to WWII, when we specifically didn't imprison German-Americans because of the potential backlash, but we had no problem putting Japanese-Americans in camps.) Except that "terrorist" can mean all sorts of things. Certainly Earth Liberation Front activists fall under the government's new jurisdiction. What about anti-globalization protesters who plan to smash a few windows? Argentina secretly disposed of thousands of protesters and dissidents during the Dirty War because they were "threats to security." What in this new round of legislation prevents Ashcroft from doing the same?
posted by risenc at 9:52 AM on November 19, 2002

Get out paper, pen, an envelope and a 34¢ stamp - it's not a big investment.

Nor is it sufficient postage...
posted by staggernation at 10:05 AM on November 19, 2002

My only question is, once the war with terrorism is over, will we be able to live in a society that values liberty?

Ah, but the "The war against terrorism may not end in our lifetimes"
posted by tranceformer at 10:19 AM on November 19, 2002

My only question is, once the war with terrorism is over....by insomnyuk


And they said irony was dead. ;)
posted by dejah420 at 10:45 AM on November 19, 2002

lord_wolf, I don't buy your argument. While I certainly agree with your point: if i say "the government can listen in on your phone conversations" or "the government can stop your car and search it" will you not understand that in the one case they need warrants and in the other that deliciously nebulous thing known as probable cause?, that's not what Dok Millennium was implying. He was clearly suggesting something much more nefarious and infringing than a wiretap or search with probable cause. Maybe I'm wrong, but that's how it reads to me.
posted by pardonyou? at 11:38 AM on November 19, 2002

John Ashcroft is well on his way to becoming the next J. Edgar Hoover

Yeah, but he just doesn't have the legs for skirts.
posted by octobersurprise at 11:51 AM on November 19, 2002

On behalf of the Academy, I'd like to formally nominate this FPP for the official "Sky Is Falling" post of the day. Thank you.

Midas,

Would this be the same sky over President Clinton's head when the right wingers were screaming that lying about a bj in a civil case was a "Constitutional crisis?"
posted by nofundy at 1:03 PM on November 19, 2002

Dok, you may not be paranoid, but you're still an alarmist.

Let's see. Where to begin?

The FISA court is not new; it was established in 1978, and has supervised domestic counter-intelligence investigations ever since under five presidents. The FISA court's proceedings are secret, as intended, but the court's existence is not, its membership -- appointed by the Chief Justice and not anyone in the executive branch, and drawn from the regular federal judiciary -- is not secret, its decisions are subject to review by the FISA review court, similarly composed, and potentially the US Supreme Court, FISA activities are reported semi-annually to the intelligence committees of both houses of the legislature. This decision by the review court did not so much grant the government powers as concur that the law as written by Congress granted those powers; it was the law (and the procedural implementation) which the review court stated "come[s] close".

risenc: What prevents Ashcroft from, as you so trollingly charmingly put it, doing the same as Argentina during its dirty war, and simply executing dissidents? Are you being stupid, or merely playing Disingenuous Man on TV? He still has to go to court to get a warrant to conduct a search. The court hasn't said "we aren't going to oversee anything you do, go ahead and drop Gore Vidal out of a helicopter if you think you need to", they said "unlike the lower court, we believe you are entitled to continue to bring warrant requests to the lower court under the procedures you have outlined, which we believe conform to the law passed by Congress and the Constitution, which actions are appealable following normal judicial procedures all the way to the Supreme Court after a prosecution".

Now, say of Hoover what you will, but he didn't have to ask a court for a wiretap. Ashcroft (and the actual FBI director, as if anybody cares) must. And Hoover certainly never had to argue before two federal courts that his surveillance was constitutional, nor did he have law in hand which backed him up. Hoover is the quintessential example of a secret policeman acting without oversight; presidents, infamously, feared his power. Today the FBI directorship is term-limited, warrants are reviewed by the judiciary, and through congressional oversight, all three branches participate in deciding the level of surveillance necessary.

I do encourage the ACLU to continue to press the court on these issues. But in any case, the beef here is not with Ashcroft, or with the FISA court (whose members, it should be noted, challenged the government's authority), but with Congress for the USA PATRIOT act, especially the relevant sections in the 200s (some of which do expire in 2005, and others of which do not).
posted by dhartung at 2:27 PM on November 19, 2002

dhartung: You got me. I was being stupid.

Really, though, does this not bother you in the least? 700 people detained, and the government won't release their names? You're right. Gore Vidal is pretty safe. Argentina's case is unlikely to be repeated. And yet do you trust the government enough to let it hide from you its domestic surveillance activities, with the assurance that it is following constitutional procedure?
posted by risenc at 3:27 PM on November 19, 2002

Here's the deal. Our democracy has many built-in tensions, and one of them is the tension between national security and civil liberties (including privacy). Related to that is the tension between national security and our right to know exactly our government is doing. This is a good, healthy friction that keeps our democracy safe and vital. Checks and balances.

Right now, the most powerful individuals and institutions in America are working to erode our civil liberties in the name of national security. On a good day, when the sun is shining and I've taken my happy pills, I might even believe that this is well-intentioned - to protect us. Sadly, we have a long and ugly history of such power-grabs being used AGAINST us rather than to protect us. "Power corrupts, and absolute power corrupts absolutely." To keep the balance between national security and civil liberties healthy, we need to push back. I'm not about to bend over and give John Ashcroft a tub of lubricant. I do not trust him. I'm going to do everything in my power to push back, to protect my freedom. That's not being an alarmist, it's being a patriot.

I have spoken.
posted by Dok Millennium at 3:52 PM on November 19, 2002

To keep the balance between national security and civil liberties healthy, we need to push back

How does one do this effectively. surely not by e-mailing ones representative. How do we, as individuals safe guard these new provisions. Yes, they can be scary and could be used for Ill. But have we not learned from hoover and co. If massive amounts of people where victimized by these provisions, what would happen? (rhetorical question)

Perhaps Jefferson could be of comfort.

"We, too, shall encounter follies; but if great, they will be short, if long, they will be light; and the vigor of our country will get the better of them."

-Jefferson, 1806.

look, the government needs wider measures to catch these terrorists. Would it not be an example of what Jefferson said if we use this provision to combat those whom want to kill us and not on our own citizens who are not involved in terrorism?

remember Adams and his Alien and Sedition acts. They where finally struck down but he believed this country was in danger from outside influence. He was right, IMO, in what he did.
posted by clavdivs at 4:46 PM on November 19, 2002

Ahh... but we didn't act on the information we already had, or it was squelched because terrorism was seen as a "Clinton issue." I agree we need *some* measure of stepped up security. But not a massive database with everything about me. Not wiretapping my phone and sniffing my email *because of my political views* -- that's where this path has led us before. Can we not learn from history? And, if we want to stop terrorism shouldn't we also stop being the tyrannical asshole of the world that makes people hate us? Fight the disease, go to the source.

(I really like the Jefferson quote, btw.)
posted by Dok Millennium at 5:10 PM on November 19, 2002

The thing that concerns me about this decision is the fact that the court seems to be saying that DOJ can get out of the normal procedures for obtaining a warrant required by the 4th amendment merely because FISA limits these warrants to suspects that are "agents of a foreign power." As I read the opinion, the court thinks FISA would be unconstitutional if it didn't contain this limitation, which (according to the court) puts the warrants at least somewhat under the presidents unquestioned power to conduct "warrantless foriegn survellience." However, it seems a bit odd to say that American citizens (and other legal residents) lose procedural rights under the Constitution merely because they are suspected of being "agents of a foreign power." Shouldn't the 4th amendment offer uniform procedural protections to everyone regardless of what they are suspected of by the DOJ?
posted by boltman at 6:28 PM on November 19, 2002

From today's UPI Think Tank Wrap Up:

The Cato Institute

In response to the ruling, Robert A. Levy, senior fellow in constitutional studies, and Timothy Lynch, director of Cato's Project on criminal justice, had the following comments:

...Previously, the FISA court granted surveillance authority if foreign intelligence was the primary purpose of an investigation. No longer. Under Section 218 of the act, foreign intelligence need only be 'a significant purpose' of an investigation.

That sounds like a trivial change, but it isn't. The FISA requires probable cause only that a target is connected to a foreign power or terror group, but not probable cause that crimes are being committed. Because the FISA now applies to ordinary criminal matters if they are dressed up as national security inquiries, the new rules could open the door to circumvention of the Fourth Amendment's warrant requirements. The result: rubber-stamp judicial consent to phone and Internet surveillance, even in regular criminal cases, and FBI access to medical, educational and other business records that conceivably relate to foreign intelligence probes.

Today's decision by a three-judge appellate panel upholds the constitutionality of the FISA court's expanded power, notwithstanding a contrary holding by the FISA court itself. Perhaps, as the appellate court said, the new law's surveillance provisions 'come close' enough to meeting minimal constitutional standards for reasonable searches. But what may arguably be constitutional is nonetheless bad public policy. The lower court got it right. The PATRIOT Act could lead to misuse of intelligence information in criminal cases.
posted by y2karl at 9:15 PM on November 19, 2002

Cool, risenc. Point taken. What I trust is the separation of powers, and in particular the legislative and judicial authority here; in that sense, I don't consider "the government" a unitary entity.

As for Cato: That's critiicism I can agree with, although it's still speculative and engages in sleight-of-hand. Can a truly ordinary criminal case be "dressed up" as a national security case? Is the court really "rubber-stamping"? Granted, regarding the latter, I'd certainly have more confidence if they were periodically denying warrants, whether or not they were successfully appealed to the review court. Still, the May ruling is suggestive that the court's composition, at least under its outgoing presiding judge, was frustrated by the DOJ's failings in the past at bringing sloppy or poorly supported warrants (some several dozen out of thousands) to their bench. But the review ruling says that the lower court exceeded its authority in trying to impose a Chinese wall that, by the time of the ruling, had been cut open by new legislation, and in any case was largely a matter of executive-branch policy dating since the Reagan era, rather than law -- in other words, a voluntary restriction not supported by statute. As for the former, the FISA court still needs to see probable cause that the person of interest in the investigation is an "agent of a foreign power"; but now the FBI can investigate them based on their domestic criminal activity (say, smuggling, or money-laundering) without having to demonstrate that they were actively spying or preparing terrorist acts first. That's the only real application of this law; and Congress overwhelmingly indicated its intent that such persons were to be subject to expanded surveillance under FISA.

And in any event, to the extent that this relies on USA PATRIOT ss. 218 {which is the clause which performed the modificatino of 1804(a)(7)(B) from "the purpose" to "a significant purpose"}, that capability is scheduled to sunset with many of the other provisions of that act in 2005. Further congressional action would be needed in the next three years to extend the clause's modification.
posted by dhartung at 11:34 PM on November 19, 2002

John Ashcroft is well on his way to becoming the next J. Edgar Hoover
pfft! jayee looked sooooo much better in babydoll pajamas.
posted by quonsar at 4:40 AM on November 20, 2002