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Lazenby: The Shadow Supreme Court

America’s Foreign Intelligence Surveillance Act (FISA) Court has become in essence a parallel Supreme Court – a “shadow” court, if you will. This has created – as The New York Times reported this weekend – a secret and separate body of law granting the National Security Agency (NSA) “power to amass vast…

America’s Foreign Intelligence Surveillance Act (FISA) Court has become in essence a parallel Supreme Court – a “shadow” court, if you will. This has created – as The New York Times reported this weekend – a secret and separate body of law granting the National Security Agency (NSA) “power to amass vast collections of data on Americans while pursuing not only terrorism suspects, but also people possibly involved in nuclear proliferation, espionage and cyberattacks.”

Former intelligence officers familiar with the court’s classified opinions told the Times that the 11-member court, which originally focused on approving wiretapping orders in the wake of the September 11, 2001 terror attacks, has dramatically expanded its role. It has been addressing broad constitutional questions and establishing important judicial precedents without the same public scrutiny given to Supreme Court orders.

Thus, a growing body of law regarding the surveillance of American citizens is being issued from a court whose orders remain sealed.

The FISA Court, unlike the Supreme Court, only hears arguments from one side of the case – the government’s side – and its findings are classified and very rarely made public. The FISA allows for a review panel to hear appeals, but such reviews have only been known to occur a few times, and no case has ever been brought before the Supreme Court (which does have an adversarial process) for review.

All of the current FISA Court judges were appointed to their seven-year terms by Supreme Court Chief Justice John G. Roberts, Jr. One judge signs most surveillance orders requested by the various intelligence agencies within the United States, which totaled nearly 1,800 in 2012. None of the requests from the intelligence agencies was denied last year, according to the court.

Perhaps the most disturbing trend revealed was the expansion by the FISA Court of the “special needs” doctrine, a legal principle that provides for an exception to Americans’ Fourth Amendment protections requiring warrants for searches and seizures.

Established by the Supreme Court in Skinner v. Railway Labor Executives Association (to allow for the random drug testing of public employees in “safety sensitive” positions), the special needs doctrine holds that minimal intrusions of privacy are acceptable when there is a need for the government to combat an overriding public danger. In Skinner, alcohol and drug abuse by railroad employees had caused or contributed to a number of significant train accidents, and a need to protect the public from such was found to outweigh Fourth Amendment concerns about random drug testing.

Now the FISA Court has ruled that the special needs doctrine applies to the NSA’s extensive data tracking and collection efforts as well. Some legal experts have argued that applying the doctrine, which has always been interpreted relatively narrowly by the Supreme Court, to the wholesale collection of data by the government to fight a nebulous “war on terror” is a stretch at best. Not to mention the fact that it’s being done in secret.

An ironic twist is that the presiding, or chief, judge of the FISA court is Reggie Walton, a 64-year old African-American judge who has said he became a lawyer in part to combat the injustice of being stopped by police in the early 1960s for simply being black. A former Democrat who is now a registered Republican, Walton has been liberal in his judicial philosophy regarding drug crimes, pushing for social programs to address drug abuse and poverty and for less focus on incarceration for drug offenses, but he has dismissed questions regarding the limits of executive power in interviews and published opinions (prior to being appointed to the FISA Court in 2007, he was a federal district court judge in Washington, DC and served on the DC Superior Court).

We cannot know which FISA Court orders Walton has written because, again, the court’s rulings are sealed, but the NSA’s authority has expanded significantly due to those orders during his time on the FISA bench.

Thus, a man who began his legal career in effort to prevent abuses by law enforcement against one group of Americans is now emerging as one of the chief architects of some disturbing law enforcement powers being used against us all in a dragnet of “national security concerns.” As I have written previously, all Americans, regardless of political philosophy, should be concerned about an increasingly broad domestic surveillance program that is of highly questionable constitutionality.

UPDATE: The Electronic Privacy Information Center is planning to file a mandamus petition with the Supreme Court to stop phone data collection by the National Security Agency.

amy lazenby

Amy Lazenby is the associate opinion editor at FITSNews. She is a wife, mother of three and small business owner with her husband who splits her time between South Carolina and Georgia. Follow her on Twitter @Mrs_Laz or email her at amy@fitsnews.com.

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36 comments

jimlewisowb July 9, 2013 at 9:48 am

Perhaps Judge Walton’s payback to the white establishment for stopping him simply because he was black is to make sure their rights are brought down to the level of his rights in the ’60s

As they say in Bethune, SC, revenge is best served on a cold plate

Reply
? July 9, 2013 at 10:07 am

Wow, champion comment OWB. Further, you slipped in a Kahn quote for nerds like myself…5 stars.

Reply
MadameOvary July 10, 2013 at 7:51 am

‘La vengeance est un plat qui se mange froide’

Reply
? July 11, 2013 at 12:35 pm

Never knew it was a French proverb originally until your quote. Thanks for da edumacation.

Reply
9" July 12, 2013 at 8:58 pm

I ain’t that bad

Reply
jimlewisowb July 9, 2013 at 9:48 am

Perhaps Judge Walton’s payback to the white establishment for stopping him simply because he was black is to make sure their rights are brought down to the level of his rights in the ’60s

As they say in Bethune, SC, revenge is best served on a cold plate

Reply
? July 9, 2013 at 10:07 am

Wow, champion comment OWB. Further, you slipped in a Kahn quote for nerds like myself…5 stars.

Reply
MadameOvary July 10, 2013 at 7:51 am

‘La vengeance est un plat qui se mange froide’

Reply
? July 11, 2013 at 12:35 pm

Never knew it was a French proverb originally until your quote. Thanks for da edumacation.

Reply
9" July 12, 2013 at 8:58 pm

I ain’t that bad

Reply
GrandTango July 9, 2013 at 10:12 am

Hey Lizenby: that Gargantuan and hot glow behind you…is your country burning down…

Clue: If you EVER want true relevance as a writer (not just pats onn the back from the corrupt and dull) you cannot lower yourself down into the rut, that milions of others have worn bare…Your headline tells what and who you are, because the cliche is so common and prevelant…

Find the under-served, maligned and neglected, and they wil beat a path to your door. As it is, you are just another in a line of tired pack-thinkers….

Reply
abbypatch July 9, 2013 at 11:21 am

I disagree with you stating it’s a blame Bush scenario. He may have started by signing with the Patriot Act, but FISA took it upon themselves to abort our constitutional rights and Obama EXPANDED the Patriot Act much, much more than Bush. So, it’s not a “blame Bush” scenario. I’m laying the blame where it belongs: the Supreme Court, FISA,and this administration.

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Frank Pytel July 9, 2013 at 11:49 am

You’re new here, right? You should probably read a few more of T’s posts. This guy jizz’s his britches at the name of any Repuklicrat. He’s not real found of the Demlicans though.

Reply
Roberto July 9, 2013 at 12:51 pm

So tell us your position on the spying on Americans by their government. Should there be limits, or not. Or do you agree with what Rush Limbaugh openly said, that it is right or wrong based on who does it?

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GrandTango July 9, 2013 at 1:04 pm

Obama has ABUSED the Law so wildly, that he should be prosecuted…Under Bush it was a much-needed and reasonable key-word monitoring system directed toward foreign Terrorists on Jihad…I, or no one, should have any problem w/ the program used as it was conceived…

Now that Obama has been caught spying on innocent Americans, Liberals are trying to make the system the culprit, not their lord-god Obama. Obama has perverted it to creep on, and punish, his political enemies…

We have an American version of Stalin in the White House….These leftists, like Lizenby, are running a Red Herring game to get the focus off the corrupt Obama Administration…That is the whole story and the end of the story…

Reply
Crooner July 9, 2013 at 12:01 pm

We are choosing safety over freedom and getting neither. Any administration charged with the awesome responsibility of protecting civilians from terrorist attacks is bound to rely on their presumed superior knowledge in balancing our freedom versus our security. And any administration is bound to err on the side of security. It is not a partisan issue, but a non-partisan problem.

Reply
Frank Pytel July 9, 2013 at 12:04 pm

I agree. The Repuklicrats and the Demlicans are not partisan. I agree, they are the problem.

Reply
Crooner July 9, 2013 at 12:01 pm

We are choosing safety over freedom and getting neither. Any administration charged with the awesome responsibility of protecting civilians from terrorist attacks is bound to rely on their presumed superior knowledge in balancing our freedom versus our security. And any administration is bound to err on the side of security. It is not a partisan issue, but a non-partisan problem.

Reply
Frank Pytel July 9, 2013 at 12:04 pm

I agree. The Repuklicrats and the Demlicans are not partisan. I agree, they are the problem.

Reply
GrandTango July 9, 2013 at 1:06 pm

Obama has ABUSED the Law so wildly, that he should be prosecuted…Under Bush it was a much-needed and reasonable key-word monitoring system directed toward foreign Terrorists on Jihad…I, or no one, should have any problem w/ the program used as it was conceived…

Now that Obama has been caught spying on innocent Americans, Liberals are trying to make the system the culprit, not their lord-god Obama. Obama has perverted it to creep on, and punish, his political enemies…

We have an American version of Stalin in the White House….These leftists, like Lizenby, are running a Red Herring game to get the focus off the corrupt Obama Administration…That is the whole story and the end of the story…

Reply
Bill July 9, 2013 at 2:52 pm

What a Joke you are. Bush and his Republican Cohorts not only abused the law they broke the law and illegally spied on innocent Americans. Then when they were caught they pushed through the changes in the law we have today to make what they were doing illegally, legal.

If people don’t like the law they should push Congress to change it. But stop shifting blame from where it belongs. Bush and the Republicans pushed through the changes that made the spying legal. They spied illegally before the law changed and after the law changed they did the exact same thing the NSA is doing now. In fact NSA has been doing what they are doing this since 2004.

Is what they are doing Constitutional? We don’t know, because most of the facts surrounding the programs are secret. The simple solution is to do what the ACLU pushed for in the first place. Revise the law to clearly set the standards for intercepting data on an American Citizen so the standard is openly debated and leaves no room for interpretation by a court.

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GrandTango July 9, 2013 at 2:56 pm

Bill said: “Is what they are doing Constitutional? We don’t know, because most of the facts surrounding the programs are secret.”

Bill also said: “Bush and his Republican Cohorts not only abused the law they broke the law and illegally spied on innocent Americans”…

If it’s SO SECRET, how do you KNOW Bush abused it????…

Are you people liars..or just total Dumb@$$#$…who think everybody is as stupid as you have to be????

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Bill July 9, 2013 at 4:01 pm

Because dumb ass, they were caught and sued. The court found the spying was illegal. Look it up. Then congress changed the laws so they could continue doing what they had been doing before.

What I said is we do not know if the way the new law is being utilized is Constitutional or not because what they are doing is secret. That is why we need to change the law.

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GrandTango July 9, 2013 at 4:10 pm

Some IDIOT Judge claimed someone during Bush’s term wiretapped a Saudi (foreign-based) Charity linked to REAL Terrorists, you STARK RAVING DUMB-@$$….That is something ALL Americans should HOPE we are doing…

That is NOTHING like what Obama has been already CAUGHT doing. Obama’s using IRS data do persecute True American-Citizen Politcal enemies of his..or spying on a Fox News reporter and his parents…

You cannot be that F*#%ing Ignorant….Can you???

Bill July 10, 2013 at 10:31 am

I’ve just got to count to ten and realize you can’t fix stupid!

GrandTango July 10, 2013 at 11:01 am

You’re just not used to anybody slapping your ignorant @$$ upside the head w/ the Truth…

From FITS and CNN to The State newspaper and MSNBC, you brain-dead Dumb@$$#$ are told you are right, only becuase they suck off Obama…and so do you…

I just put my Foot up your imbecile @$$…and most leftwing spoiled brat idiots whine like babies when that happens…

Nikita July 10, 2013 at 1:23 am

This is very similar to cold war propaganda of the 50’s and 60’s,urged on by paranoia and ,’what if’,conspiracy ‘thinking’.Let the fucking G O V E R N M E N T surveil me all they want,whatcha gonna do???

Go build a fallout shelter,and live in fear for the rest of your miserable life.If you’re buying into this BS,that’s what you deserve.

http://www.youtube.com/watch?v=m0OnobqlDlY

Reply
Nikita July 10, 2013 at 1:23 am

This is very similar to cold war propaganda of the 50’s and 60’s,urged on by paranoia and ,’what if’,conspiracy ‘thinking’.Let the fucking G O V E R N M E N T surveil me all they want,whatcha gonna do???

Go build a fallout shelter,and live in fear for the rest of your miserable life.If you’re buying into this BS,that’s what you deserve.

http://www.youtube.com/watch?v=m0OnobqlDlY

Reply
9" July 10, 2013 at 12:27 pm

I used to like ,Abraham Lincoln.Now,I HATE him,but Ms. Lazenby,daughter of the first Bond replacement(?),has inspired some brilliant ,uh,dialogue,but be kind to the help,my white relatives always said….Just remember,Fits and his blog are very important(he says).This will eventually PAY OFF(yeah,that’s the ticket…).

Reply
9" July 10, 2013 at 12:27 pm

I used to like ,Abraham Lincoln.Now,I HATE him,but Ms. Lazenby,daughter of the first Bond replacement(?),has inspired some brilliant ,uh,dialogue,but be kind to the help,my white relatives always said….Just remember,Fits and his blog are very important(he says).This will eventually PAY OFF(yeah,that’s the ticket…).

Reply

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