Want to File a Motion in the FISA Court? First You Have to Find Them

http://www.mynsarecords.com/blog/2013-06-17-want-to-file-a-motion-in-the-fisa-court/

by tsaoutourpants • 13 years ago

255 81 13 years ago

Hello, OP and guy who is tracking down the FISA court for you. Happy to answer any questions!

pluies• 13 years ago

My first reaction upon seeing your username and remembering previous HN discussions related to your actions was "oh, it's you!".

Keep up the good work. :)

tsaoutourpants16• 13 years ago

Thank you! I have trouble resisting doing more work when the government keeps making my previous causes look like minor constitutional transgressions in comparison. ;)

will_brown4• 13 years ago

1. Can you release a sample of your Motion to Quash, sans personally identifying information, or maybe the Motion on your own behalf?

2. Will you consider filing a Motion to the Court mandating the Court acceptance electronic filings (CM/ECF), since 1. presumably all Americans have standing; 2. your experience alone should be prima facie evidence that the Court is purposely limiting access to the Court itself; 3. it is an exception that a Federal Court does not permit CM/ECF (see: http://www.uscourts.gov/FederalCourts/CMECF/Courts.aspx) - I am of the opinion that #2 will cause the most damage because it will open the floodgates and overwhelm the Court.

Give em hell.

tsaoutourpants16• 13 years ago

1. The form is basically on the Web site. If you copy and paste it into Word, you're all set.

2. There's nothing I'm aware of to force a court to accept electronic filings. But they really should accept paper filings directly.

ajb2• 13 years ago

Probably just websense being rubbish, but:

Security risk blocked for your protection

Reason: This Websense category is filtered: Potentially Damaging Content. Sites in this category may pose a security threat to network resources or private information, and are blocked by your organization.

URL: http://www.mynsarecords.com/blog/2013-06-17-want-to-file-a-m... urt/

tsaoutourpants16• 13 years ago

Fascinating. :) Sent them an e-mail asking for an unblock. You may wish to try over HTTPS, which can give a different result sometimes.

Did you see the article the other day about Google working to create a filter "to eliminate child pornography" that can be shared by every search engine, photo host, etc.? Can't wait to see what they expand that to... "photos promoting violence," "photos that hurt people's feelings," and of course, "oops that one accidentally got blocked, I don't know how that happened! ;)" All coming soon if we blink for a second.

ajb2• 13 years ago

I can see it if I put in https; Thanks.

tsaoutourpants16• 13 years ago

They have replied and told me they've adjusted categories.

driverdan• 13 years ago

Probably just websense being rubbish

Websense is always rubbish.

anonymoushn• 13 years ago

I enjoyed Kafka much more when it was fiction.

VMG• 13 years ago

For those who want to enjoy it: http://www.kafka-online.info/the-trial.html

"You're under arrest, aren't you." "But how can I be under arrest? And how come it's like this?" "Now you're starting again," said the policeman, dipping a piece of buttered bread in the honeypot. "We don't answer questions like that."

jacques_chester3• 13 years ago

For those who find this a bit hard to follow, I found the translation in the Penguin edition to be free-flowing and quite poetic in places.

Zaephyr• 13 years ago

Quote of the day! ...sadly

res0nat0r• 13 years ago

The FISA court isn't meant to be a public courtroom, hence it's location isn't public. Sorry but HN has jumped the shark lately with all of these NSA related posts, they seem to just be slapped together to elicit some kind of knee jerk outrage.

If one was actually concerned about the FISA courts location vs. just piling on with another "government bad" post on HN a little research would tell you that it is on the top floor of the Justice Department building. Source: my copy of Shadow Factory by James Bamford. Page 113. Published 2008.

tsaoutourpants16• 13 years ago

Actually, the FISA court is supposed to be accessible to motions from non-governmnet parties. Please see the FISA Court's rules: http://www.uscourts.gov/uscourts/rules/FISC2010.pdf

mtgx• 13 years ago

But why is the FISA Court secret? What? They think the terrorists will get mad they allow the US government to spy on all Americans?

Come on. Let's be real here. There's only one real reason for that, and that's because they don't want the normal public to know just how far the spying and skirting of the Constitution goes.

A country with secret courts and secret laws and rulings is not a free country.

throwaway9848• 13 years ago

Why are is the FISA court secret? Because if the CIA went into a courtroom that was open to the public and asked for a warrant that was part of a legitimate investigation into a group planning an attack on the general public, then there is a good chance that the group could find out about it.

snowwrestler3• 13 years ago

The reason FISA exists at all is that the concept of the CIA going into court for a warrant to spy on foreigners is nonsensical. Foreigners don't have standing in federal court, and the CIA is not bound by the rules of federal procedure.

The point of FISA is to ensure that U.S. citizens are not swept up in intelligence activities that should be targetted solely at foreigners. If it operated properly, it would not matter much to U.S. citizens that it is secret.

Obviously it's not operating properly now--in part because of overreach by intelligence agencies, and in part because their oversight powers were reduced by Congress following 9/11.

nohuck13• 13 years ago

"The idea that in order to reach the judicial branch, I must ask the executive branch to process my request is antithetical to the separation of powers required by our constitution."

Well that pretty much sums it up.

matthewmcg• 13 years ago

Agreed. It's worth noting that the the Foreign Intelligence Surveillance Court is different than the usual "Article III" courts in that it is created by federal statute. Though its judges are drawn from the judicial branch, it is essentially captive to the executive and legislative branches and its judges have limited terms rather than life tenure. See http://www.law.cornell.edu/uscode/text/50/1803

malandrew• 13 years ago

Whoa. That is frightening. Limited terms only? Let me guess, the current administration gets to choose whatever judges they want to preside over the FISC rulings made during their tenure.

legalbeagle• 13 years ago

This isn't correct. All federal courts except for the US Supreme Court are created by statute. The FISC judges are Article III judges on the district courts or courts of appeal, appointed for life. It is true they are assigned to the FISC for limited terms, but they are still article III judges serving in an article III court.

score• 13 years ago

Jonathan, thanks for being a great example of activism and an inspiration to me and I'm sure others as well :)

tsaoutourpants16• 13 years ago

Thanks, score! I always believe that I can make a difference, and that we all can. It's just a matter of taking a bunch of your time, putting yourself out there, and doing it.

ErrantX2• 13 years ago

Corbett is a great read, just the right amount of humour about a deeply serious matter. I've been following his TSA blog for a while now and his tenacity is impressive.

For me, what he is now running into is deeply concerning beyond the whole NSA stuff; secret courts, hidden behind the executive branch is a precedent that should never be set.

I hope Corbett's work here gets picked up widely by the media.

tsaoutourpants16• 13 years ago

Thank you very much! It's interesting what the media picks up and what it doesn't. It loved my video of me beating the TSA's nude body scanners, but most of the other stuff I've done -- especially my lawsuits -- seem to barely piqued their interest. Things, it appear, have to be sensational, rather than merely important, which is why Snowden managed to get the point across when others have warned of this spying for years.

ErrantX2• 13 years ago

Which really drives into what is wrong with a) the media and b) the populace; apathy.

The 99% just don't care unless it is on Youtube.

perlpimp• 13 years ago

One of the articles here stated that FISA is not a court but a group of judges that have signed up to do this FISA court thing. So when there is a request for wiretap/search - they get called up on the phone and they have to be in reasonably secure location to answer and either allow of disallow search verbally.

Sounds kind hokey doesn't it.

tsaoutourpants16• 13 years ago

That's basically the deal.

nl• 13 years ago

I'm old enough to remember the cold war. One of the big criticisms of Eastern block countries was that the courts were subservient to the government, that the government was not constrained by the law and that trials were secret.

Have we forgotten this already?

If courts have found that national security concerns override any law and something is a national security concern merely on the say so of the executive branch then is there any constraint on executive branch power at all?

ctdonath• 13 years ago

We've forgotten that, internal passport checkpoints, arrest without articulated cause, search without warrant, warrantless surveillance, national IDs, and a whole lotta other things which used to be mentioned as code for the worst oppressive governments and which are now widely accepted as normal, even demanded, by the masses.

There's a whole lotta people who figure this isn't going to get fixed without things breaking.

mcguire• 13 years ago

Be careful when you choose your enemies. You will become them.

jacques_chester3• 13 years ago

A better formulation might be: Be careful about defeating your enemies. Without them, you have anti-standard to hold yourself to.

bconway• 13 years ago

Have we forgotten this already?

Given that our current President wasn't alive for half of it (exclusive of petering out, 1947-1961), that seems pretty likely.

dak1• 13 years ago

Well, if these motions ever do find their way to the court, the court's statistics for rejected motions should improve considerably.

rayiner9• 13 years ago

The FISA court is not an article III court. Its a congressional check on the executive's exercise of discretion. It limits executive discretion that would otherwise be unbounded. So the fact that its secret isn't some big scary thing: it doesn't have the power to make decisions that require an article III court anyway. It makes decisions that would otherwise be made behind closed doors in the executive.

The danger of the FISA court is if it starts impinging on the domain of article III courts. Granting warrants that would otherwise require an article III warrant, etc. The fact that its real article III judges could lend an air of legitimacy to that process that it shouldn't have.

spligak3• 13 years ago

I question your assertion it is not an Article III [1] court. In fact, I think you are either wildly misinformed or being intentionally misleading.

The FISA court of 11 judges is appointed by the Chief Justice of the United States. [2] It absolutely is an Article III court. The ACLU has even acquired its rules [3].

The fact this is the top comment without citation is troubling. Please don't encourage these sort of claims without at least a cursory glance at the documents governing these institutions.

[1] http://www.law.cornell.edu/constitution/articleiii [2] http://www.law.cornell.edu/uscode/text/50/1803 [3] http://www.aclu.org/patriot_foia/2003/court_rules.pdf

tptacek7• 13 years ago

If FISC was an Article III court, wouldn't its judges have lifetime tenure? Wouldn't it's judges be appointed by the President and confirmed by the Senate?

I don't think membership consisting of judges who would otherwise preside over Article III courts necessarily makes FISC an Article III court, and judges appointed by the Chief Justice actually suggest the opposite.

There's an article at the Yale Law Review that criticizes FISC for not being a regular Article III court.

rayiner9• 13 years ago

See my correction above. I wouldn't say I'm "wildly misinformed" (the definition of "Article III court" isn't bright and clear, and Orin Kerr couches his opinion that the FISA court is an article III court in a "I would think") but it's probably most accurate to describe the FISA court as an article III court, albeit one that can't exercise any of the powers that would make a secret article III court scary.

rayiner9• 13 years ago

I should clarify that I probably should have said "regular article III court." The FISA court is an article III court in the technical sense of the term (at least Orin Kerr things so: http://www.orinkerr.com/2006/07/14/article-iii-standing-and-...), because its judges are article III judges. Reading Kerr's comments, I'm now convinced that this is probably the correct use of the term.

However, when someone says "article III court" they are usually referring to: the Supreme Court, the U.S. Courts of Appeal, and the U.S. District Courts, as these are the only courts that can exercise the full judicial power of the United States. In that sense the FISA court is not a regular Article III court, because it has a circumscribed set of powers.

In any case, my point is that a "secret court" sounds scary, and a secret court with full Article III powers would be very scary. But the FISA court is not such a court.

btilly• 13 years ago

I question whether the FISA court has as little power as you describe.

Under the FISA law, a FISA warrant may be issued against US citizens if they are believed to be engaged in or preparing for acts of international terrorism or sabotage. Those warrants are beyond the power of the President.

Furthermore anyone at all, US citizen or not, under suspicion or not, may receive a FISA subpoena if the government claims that it furthers an investigation. That goes WAY beyond any authority that the executive is supposed to have.

at-fates-hands• 13 years ago

Agreed. Once you learn how FISA works, it gets pretty scary:

http://hotair.com/archives/2013/06/18/is-there-a-leak-at-the...

"Remember, in a FISA court, there is no equivalent of a defense attorney speaking on behalf of the person being investigated. It is not an adversarial court. Nobody speaks for you, Joe Citizen. The government makes its case, and the judge either says, “okay,” or “no, I’m not convinced.”"

- Since the start of the War on Terror more than 11 years ago, the court has denied just 10 applications, and modified several dozen, while approving more than 15,000.

rayiner9• 13 years ago

Can FISA warrants be used in situations where an Article III warrant would be required? I don't think that's the case. Also, tons of executive agencies have subpoena powers, e.g. the SEC.

snowwrestler3• 13 years ago

Those warrants are beyond the power of the President.

Aren't all warrants beyond the power of the President? Isn't that the point of warrants in the first place?

jstalin2• 13 years ago

You might try contacting the EFF or ACLU lawyers who succeeded in filing motions with the court and asking them where to file:

http://www.uscourts.gov/uscourts/courts/fisc/index.html

tsaoutourpants16• 13 years ago

I did. Their response was the same as what I found: service through an intermediary at the DOJ is required.

jstalin2• 13 years ago

Crazy. So you must go through an executive agency to access the judicial branch...

wpietri• 13 years ago

Mildly off topic, but this really reminds me of The Onion's story on Kafka International Airport: http://www.youtube.com/watch?v=gEyFH-a-XoQ

Want to File a Motion in the FISA Court? First You Have to Find Them

Related Stories