Another 4th of July has come and gone, and another president has demonstrated that the idea of freedom under American democracy is an illusion. The Foreign Intelligence Surveillance Act (FISA) court, at the request of President Obama, ruled on June 29th that the National Security Agency (NSA) can resume its massive domestic spying program—in spite of judicial and legislative action to stop it.
The FISA court said that it “respectfully disagrees” with the 2nd U.S. Circuit Court of Appeals in its ruling that NSA’s spy program is illegal, and believes that the public court has no controlling precedent for the secret FISA court.
On May 7th the 2nd U.S. Circuit Court of Appeals in Manhattan ruled that the PATRIOT Act did not authorize the bulk collection of Americans’ phone records, and thus has no lawful basis. The Bush and Obama administration claimed that the FBI’s ability to collect domestic business data meant that the NSA could pursue its domestic spying, but Judge Gerald Lynch was having none of it.
"Such expansive development of government repositories of formerly private records would be an unprecedented contraction of the privacy expectations of all Americans. We would expect such a momentous decision to be preceded by substantial debate, and expressed in unmistakable language. There is no evidence of such a debate."
Sadly, moral and logical debate is no longer part of the process, especially when it comes to the sanctified realm of “security.” Privacy is readily swept away under the guise of advancing freedom. Clearly, the same applies to checks and balances.
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It is only thanks to Edward Snowden’s brave, self-sacrificing act to expose the depth and breadth of NSA domestic spying that we are even witnessing court challenges. When whistleblowers come forward, it pierces the armor of the State and disrupts the narrative of the mainstream media.
The appeals court ruling forced action by Congress, which seemingly confirmed the court’s opinion in passing the 2015 USA FREEDOM Act. The law, which bears another Orwellian acronym, preserved most of the PATRIOT Act but ended the NSA’s bulk phone data collection. It was a hollow victory for privacy, though, as telecom companies would simply keep the bulk data and the NSA could query it with FISA's blessing.
This may have been a farce from the start, though, with Obama and Congressional leaders knowing full well the course they could take to defy the public court. Congress included a 180-day grace period before the law applies to NSA, and this is what the FISA court used to justify its opinion:
“Congress deliberately carved out a 180-day period following the date of enactment in which such collection was specially authorized. For this reason, the Court approves the application in this case."
President Obama’s national security chief at the Justice Department, John Carlin, demonstrated the cold authoritarianism that has overtaken the Executive branch since 9/11.
"“This court [FISA] may certainly consider ACLU v Clapper as part of its evaluation of the government’s application, but second circuit rulings do not constitute controlling precedent for this court,” Carlin wrote in the 2 June application. Instead, the government asked the court to rely on its own body of once-secret precedent stretching back to 2006, which Carlin called “the better interpretation of the statute.""
There is no ambiguity here. Secret proceedings by a few people appointed to the job of advancing and rubber-stamping the endless War on Terror reign supreme. They take full precedence over the careful deliberation of public courts and the action of elected representatives.