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The Government’s Secret Court, there is no real congressional or judicial oversight!

By Dr. Harold Pease

With the recent outbreak of establishment media coverage of the National Security Administration’s, NSA, spying on over 100 million Americans, recording their telephone conversations, emails, and other electronic messages for the last seven years, the attention has turned to whatever happened to congressional or judicial oversight. Defenders of the spying are assuring us that such is in place and we should not worry. The government’s surveillance of its own citizens is old news dating back to at least 35 years as is the government’s secret court, the FISA court, authorizing them to do so. I have told my students about this court for at least 25 years.

This secret court began during the Jimmy Carter Administration with the Foreign Intelligence Surveillance Act, in 1978. Initiated by Ted Kennedy it had strong bipartisan support. It was created as a response to President Richard Nixon’s usage of federal resources to spy on political activist groups during his tenure as president, which likely violated the Fourth Amendment. Ironically, the solution, legalized spying on our own citizens, was a greater violation of the Amendment than before. Few voices opposed giving the government extra spy power during the “Cold War” when it seemed that the whole planet was falling under the totalitarian influence of communism but, once legalized, the surveillance moved to other groups notably the socialists who opposed the Vietnamese War.

CBS News commentator Dan Rather, in his program, Eye on America, was one of the first to speak out on the intricacies of this secret court and he did so in 1994–nineteen years ago. He correctly spoke to the issue that all federal courts are supposed to be open, that the Constitution has no place for secret courts. His program opened, “Chances are you have never heard of this court because it does operate in secret.” The FISA court “holds no public hearings, classifies its rulings top secret and has wide freedom to order domestic spying in the name of national security.” Alan Deshowitz, a defense attorney at the time, was cited as having said, “The idea of there being a secret court in America is so UN-American and the end result is that the rights of American citizens are being violated by this court. What is at stake here is the liberty of the American people. Secrecy and liberty are incompatible.”

The 1994 program continued, “Behind the stone walls of the Justice Department’s sixth floor the court sits in an ultra-high security vault, guarded by impenetrable double doors. There, seven federal judges hear surveillance requests from the FBI, the CIA, and the Department of Defense. And it appears the court has never heard a request it didn’t like. Over the years the government has asked for 7,500 surveillance warrants. The number refused by the court is zero. The government has never been denied.” In 1994 this amounted to two surveillance approvals on U. S. citizens a day. There was no follow up on how the information obtained was used in the defense of freedom.

It gets worse, “The questions “under FISA aren’t quite as tough as they are in even an ordinary criminal case. In any other court for an ordinary surveillance warrant a judge must find that a suspect is involved in a crime. Under FISA the standard is lowered to ‘may be involved.’ An ordinary wiretap runs 90 days. FISA taps can last a year. A suspect under ordinary criminal surveillance ‘must be told’ about it eventually but not under FISA. And finally, if prosecuted, a defendant is never allowed to see the top-secret warrant applications used against him.” Ironically, all this is happening “in a windowless vault just beyond Constitution Avenue,” the program concluded.

To date the secret court has reviewed 33,900 requests denying, in its 35-year history, only eleven—so much for oversight. This means that 968 Americans are approved for secret spying, through wiretapping and other surveillance techniques, each year with only one rejection. This number is not to be confused with the 100 million Americans subjected to secret blanket extraction of their electronic data for the last seven years for some future purpose by the NSA. These are they where your Congress, through FISA, authorized actual study of your private information without your permission or knowledge. I guess that is okay as long as it is on someone else. The problem is, it may be on you for the last anti government thing you said or wrote. How Orwellian is this? Tell your congressman to end the FISA secret court. Secrecy and liberty are incompatible.