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They're changing the rules on us.

Fundamental structural normalcy in the so-called intelligence community seem to be changing both quickly and [not surprisingly anymore] in secret. Old secret courts are morphing into new revitalized secret courts able to effectively rule in secret on constitutional issues that for the vast majority of America's history have been placed solely at the door to the United States Supreme Court, from which rulings were regularly released to the public.

In more than a dozen classified rulings, the nation’s surveillance court has created a secret body of law giving the National Security Agency the 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, officials say.

The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents, with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions.

(my emphasis)

Usually, constitutional issues end up at the D.C. Court of Appeals where they're assessed and ruled upon -- except in rare chosen instances when those issues are then sent up to the SCOTUS -- or sent back to the lower courts. It now appears that the FISC is about to take on a good deal more of the regular caseload off the appeals court's hands. Which, consequently, means more and more secret rulings not subject to review or redress.

Notice how the Times omitted the word "Foreign" in their above reference to, "the nation’s surveillance court?" To me, this seems like a subtle insidious attempt to change the overall federal judicial paradigm.  

Saturday's New York Times has the story.

The 11-member Foreign Intelligence Surveillance Court, known as the FISA court, was once mostly focused on approving case-by-case wiretapping orders. But since major changes in legislation and greater judicial oversight of intelligence operations were instituted six years ago, it has quietly become almost a parallel Supreme Court, serving as the ultimate arbiter on surveillance issues and delivering opinions that will most likely shape intelligence practices for years to come, the officials said.

Last month, a former National Security Agency contractor, Edward J. Snowden, leaked a classified order from the FISA court, which authorized the collection of all phone-tracing data from Verizon business customers. But the court’s still-secret decisions go far beyond any single surveillance order, the officials said.

“We’ve seen a growing body of law from the court,” a former intelligence official said. “What you have is a common law that develops where the court is issuing orders involving particular types of surveillance, particular types of targets.”

Note: I italicized the above link to highlight the fact that the Times is being a bit disingenuous by not saying that greater judicial oversight was based on the Bush regime's decision to oversee the FISC themselves, which in itself was essentially a broad overreach of power by the executive branch.

In one of the court's more notable dubious decisions of late, FISC judges expanded use of a legal principle known as the "special needs" doctrine, carving out an exception to the Fourth Amendment's requirement of a warrant for searches & seizures.

The Supreme Court established the special needs doctrine in 1989 in allowing the drug testing of railway workers. At the time, they found that a minimal intrusion on privacy was justified by the need of the government to mitigate an overriding public danger. However, the FISC court has now applied that doctrine more broadly to include the NSA's collection and examination of all Americans' electronic communications data. Subsequently, the FISC have ruled in secret that the massive surveillance operation does not run afoul of the Fourth Amendment.

That legal interpretation is significant, several outside legal experts said, because it uses a relatively narrow area of the law — used to justify airport screenings, for instance, or drunken-driving checkpoints — and applies it much more broadly, in secret, to the wholesale collection of communications in pursuit of terrorism suspects. “It seems like a legal stretch,” William C. Banks, a national security law expert at Syracuse University, said in response to a description of the decision. “It’s another way of tilting the scales toward the government in its access to all this data.”
There's no getting around the fact anymore that our federal government is creating laws to cover up crimes and myriad constitutional violations -- all in the name of fighting terrorism -- against esoteric enemies serving as vehicles to justify the facilitation of the new enhanced American police state.

There's much more of this article at the Times: In Secret, Court Vastly Broadens Powers of N.S.A.

Apparently, our laws are now created and applied by fiat at the whim & fancy of a president.

Originally posted to markthshark on Sat Jul 06, 2013 at 07:22 PM PDT.

Also republished by The First and The Fourth.

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