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The eleven members of the Foreign Intelligence Surveillance Court and the Chief Justice who appoints them should be impeached by the House, tried and convicted by the Senate, and removed from office. The FISC Twelve are:

Reggie Walton
Rosemary M. Collyer
Raymond J. Dearie
Claire Eagan    
Martin L.C. Feldman
Thomas Hogan    
Mary A. McLaughlin    
Michael W. Mosman    
F. Dennis Saylor IV    
Susan Webber Wright
James Zagel
Chief Justice Roberts, who appointed them.   

I begin with our Constitution, Article II Section 4, which provides  

"The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors."
 "Misdemeanor" is a traditional term of art; it refers to abuses of office whether specifically criminal or not.

Historically, impeachments have usually involved criminal acts such as bribery.  However, in 1862 West Humphreys was impeached and removed from office for waging war against the United States.

Much more below the orange sigil of the Worm Ourobouros

And now we come to the FISC 12.  They should be sent on their way.

What are the charges?

One. Abuse of office, issuing writs of assistance and general search warrants as denounced by the founding fathers of our republic.  I quote the Virginia Declaration of Rights:

"That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted."
But that's what a  FISC search warrant is, a general warrant.  There can be no doubt.  Issuing a general warrant is a gross abuse of power. For such an abuse, the cure is impeachment.

Two.  Perjury, failing to adhere to their oaths of office to protect and defend the Constitution.  General searches are completely forbidden by our Fourth Amendment, which provides

"no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"
 Precedents go back to the case of colonial-period case of John Entick (1765), who had all of his papers (not just the criminal ones) seized, with no probable cause. The search and seizure were voided under law existing even before our Constitution was penned. The FISC warrant targets every single person using a major telecomm firm.  There's no possibility of probable cause.  The FISC warrants are anything but legitimate warrants, because there is no particularity in the description of what is to be seized.

The proceedings of the FISC court are Star Chamber proceedings, kept secret not only from the people but from the attorneys of those being searched. Against secret hearings there is no possibility of defense. Again, we have here perjury, failure to adhere to the oath of office.

We now in addition have the interesting result that the NSA leaks evidence of alleged crimes to other law enforcement agencies such as the DEA.  These other agencies then manufacture a fraudulent evidentiary trail, hiding the fact that the actual evidence for the crime was tainted.  That's a massive violation of or Constitution and Bill of Rights.  By failing to prevent these violations, or to speak out against them, the FISC Twelve failed to protect and defend our Constitution.

Three. Levying war on the United States. Oh, yes, electronic warfare is warfare.  That's why the Department of Defense spends so much money on it. What is being done is a classic part of electronic warfare, sweeping up every scrap of our electronic communications, exactly as the Allies did against the fascists during World War 2.  Thanks to various nefarious international agreements, it is the same allies doing the sweeping, but this time the target is not the German war machine but the American people.  That's electronic warfare, and we the American people are the targets. The effect of the war is deny journalists their sources and frighten some Americans into silence.

The FISC Courts have destroyed one of our fundamental rights, a right so fundamental that it did not need to be spelled out, the Right of Privacy. To return two and a half centuries ago to the case of John Entick, the court held "Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave."  That's the Constitutional Right the FISC proceedings have trampled underfoot. My email is my property, and it is being set foot upon. Readers may wish to recall that privacy is the same right that gives women access to abortions and (recall Griswold) married couples access to contraceptives.

Finally, there are those who will defend the FISC 12 by claiming that the FISC 12 are simply obeying the law.  

First, no law passed by Congress can override our Constitution.  By authorizing writs of assistance and general search warrants, Congress has not merely violated our Constitution, it has smashed the Constitution to pieces.  The Law of the Land, our Constitution, is being violated.

Second, we have a clear legal precedent.  I refer to the third of the Nuremberg Trials, the Judges' Trial. Sixteen German judges and lawyers were tried on four major charges.  The judges had the defense that they were obeying German law; furthermore, unlike the United States, there was no higher German law above the acts of the German Parliament. Most of the Germans were convicted.  The FISC 12 have no such defense.  American does have a higher law, our Constitution, and they broke it.

Poll

With respect to your position,

60%21 votes
8%3 votes
20%7 votes
0%0 votes
5%2 votes
5%2 votes

| 35 votes | Vote | Results

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Comment Preferences

  •  Tip Jar (5+ / 0-)

    Restore the Fourth! Save America!

    by phillies on Sat Aug 17, 2013 at 12:32:05 PM PDT

  •  Article II Section 4: "The President..." (3+ / 0-)

    Why no call for his impeachment?

    The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness. -- John Kenneth Galbraith

    by richardak on Sat Aug 17, 2013 at 12:36:51 PM PDT

    •  the sixth... (2+ / 0-)
      Recommended by:
      DefendOurConstitution, koNko

      president to serve after the law creating it passed is the one we should impeach for it?

      "It's almost as if we're watching Mitt Romney on Safari in his own country." -- Jonathan Capeheart

      by JackND on Sat Aug 17, 2013 at 12:41:38 PM PDT

      [ Parent ]

      •  Why not? The FISA judges predate this admin too. (3+ / 0-)

        The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness. -- John Kenneth Galbraith

        by richardak on Sat Aug 17, 2013 at 12:45:13 PM PDT

        [ Parent ]

        •  just... (2+ / 0-)
          Recommended by:
          DefendOurConstitution, koNko

          checking. I already find opinions on this issue easily the most ludicrous ever...I can frankly no longer be surprised by any rhetoric bubbling out on this matter.

          "It's almost as if we're watching Mitt Romney on Safari in his own country." -- Jonathan Capeheart

          by JackND on Sat Aug 17, 2013 at 12:51:14 PM PDT

          [ Parent ]

          •  I find the rhetoric ludicrous myself... (2+ / 0-)
            Recommended by:
            DefendOurConstitution, koNko

            I asked the question because I find it puzzling why those who think that FISA = constitution destroying STASI police state/evil incarnate aren't holding the man in charge personally responsible and demanding his resignation.  After all, Greenwald has spent the last few years portraying Obama as a drone wielding baby killer. Shouldn't this be the last straw?

            The modern conservative is engaged in one of man's oldest exercises in moral philosophy; that is, the search for a superior moral justification for selfishness. -- John Kenneth Galbraith

            by richardak on Sat Aug 17, 2013 at 01:01:09 PM PDT

            [ Parent ]

      •  Logic fail. (1+ / 0-)
        Recommended by:
        koNko

        If six people rob a bank but five of them are either at large or deceased, the fifth should escape the legal consequences?  If the sixth participant is your best friend, should his crimes be excused just because you like him?  Is there some (secret) law that says that none may be prosecuted unless all of them are?

        "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

        by Neuroptimalian on Sat Aug 17, 2013 at 02:53:25 PM PDT

        [ Parent ]

        •  that doesn't fly... (0+ / 0-)

          there weren't six co-presidents at the time, and even if there were, Barack Obama wasn't one of them.

          "It's almost as if we're watching Mitt Romney on Safari in his own country." -- Jonathan Capeheart

          by JackND on Sat Aug 17, 2013 at 04:13:01 PM PDT

          [ Parent ]

          •  He was the last of them to go in the bank, ... (1+ / 0-)
            Recommended by:
            koNko

            and now he's driving the get-away car.

            "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

            by Neuroptimalian on Sat Aug 17, 2013 at 04:18:13 PM PDT

            [ Parent ]

          •  We really cannot judge Obama (1+ / 0-)
            Recommended by:
            Neuroptimalian

            Fairly and completely without understanding the content and effect of various Secret Presidential Findings he has made.

            However, if we consider his use of the pre-existing apparatus and expansion of programs dependent on them as well as his use of other executive powers that fit the same mold of executive over-reach, such as his use of executive declarations of enemies of the state and execution of them with drones, arguably conducting a war without the consent of Congress, then it frankly incredible to argue his hands are clean.

            One might even consider that argument "ludicrous retoric".

            Just say'n' ...

            400ppm : what about my daughter's future?

            by koNko on Sun Aug 18, 2013 at 02:28:03 AM PDT

            [ Parent ]

          •  So the sons of Mafia Dons who continue (1+ / 0-)
            Recommended by:
            Neuroptimalian

            Their criminal enterprises are innocent?

            400ppm : what about my daughter's future?

            by koNko on Sun Aug 18, 2013 at 02:29:19 AM PDT

            [ Parent ]

    •  What does he know (0+ / 0-)

      and when did he know it? I am unsure as to the truth there.

      I believe we have to wait a bit until Mr Greenwald leaks the needed documents.  After all, Clapper told the minimal lie to Congress; why should he not also have deceived his boss?  I am of an open mind, though I respect people who support the Navy position "it happened on your watch".

      Restore the Fourth! Save America!

      by phillies on Sat Aug 17, 2013 at 02:33:03 PM PDT

      [ Parent ]

      •  Just like the CEO of any corporation, (1+ / 0-)
        Recommended by:
        koNko

        the president is "responsible" for knowing what activities his administration is involved in, especially those it takes deliberate steps to further and expand, which could not happen absent his authority.

        Playing dumb, especially as to a subject so critically important, isn't going to fly.

        "Two things are infinite: the universe and human stupidity, and I am not sure about the universe." -- Albert Einstein

        by Neuroptimalian on Sat Aug 17, 2013 at 02:56:44 PM PDT

        [ Parent ]

      •  Mr. Greenwald doesn't leak anything (1+ / 0-)
        Recommended by:
        Sandino

        The Washington Post and The Guardian make editorial decisions to publish information or not.

        Please, let's try to keep that straight and stop getting is ridiculous arguments about the personalities involved. I think we have had enough of that on Daily Kos.

        If Mr. Greenwald, as a private citizen was disclosing this, he'd be in the same circumstance as Mr. Snowden. But he is not; his role is strictly that of a reporter and commentator for The Guardian and others on The Guardian staff such as Spencer Ackerman are the primary reporters and editors calling the shots on what gets published; and Greenwald has no association with The Washington Post on this story.

        I'm not intending to chastise you, just set the record straight so we can tone-down the arguments that surround that erroneous assumption.

        Thanks for reading.

        400ppm : what about my daughter's future?

        by koNko on Sun Aug 18, 2013 at 02:37:03 AM PDT

        [ Parent ]

  •  The Congress set them up. Remove the Congress.n/t (2+ / 0-)
    Recommended by:
    devis1, koNko
  •  Pipe dream... (3+ / 0-)
    Recommended by:
    ybruti, dennis1958, koNko

    Even if you think it is the way to proceed.

    Personally, I think the FISA Court should be abolished.  I don't believe in secret courts making secret rulings on secret laws related to secret activities.

    But short of that, a reform that might improve things would be to removed appointment power from the Chief Justice.

    If the court is to continue the judges should be appointed by the President and confirmed by the Senate.

    At least that would get their views and background on the record in front of the public.

    Since it is an 11 member court I recommend 11 year terms, with one new appointment to replace one retirement per year.  Or perhaps s 6 years with two vacancies per year, if the 11 year cycle is too long.

    No eligibility for reappointment so that members do not become completely co-opted as lifetime members of the national security establishment.

    You'd have to phase it in.  Imagine 11 confirmation hearing in a row in the current gridlock. Though that might have the salutatory effect of shutting the thing down.

    A bit of a half-measure perhaps, but probably as much as could be hoped for at present.

    "I don't give them Hell. I just tell the truth about them and they think it's Hell."

    by Notthemayor on Sat Aug 17, 2013 at 01:11:27 PM PDT

    •  I would also suggest (1+ / 0-)
      Recommended by:
      Notthemayor

      That rulings (names and identifying info redacted) must be published so the public can perform its own oversight and apply pressure to elected officials when the court is clearly acting against the public's understanding and interest in the law.

      That the ability to issue orders silencing recipients of warrants be eliminated, that recipient have full recourse to oppose (squash) the warrant or order without fear of arrest for talking about it.

  •  Good discussion. I think the 12 ought to be (1+ / 0-)
    Recommended by:
    phillies

    impeached as you said.  While I am disappointed with POTUS on this one - I think he could & should have done more to end or expose this BS and seek changed - he was handed a horrible situation that was created by the Cheney administration in a stacked court and changes to laws made by means of the Patriot Act that give Obama very little room to maneuver as Roberts pulls the strings, not Obama.  I certainly would have expected Obama to refuse to sign the extension in 2011 if this BS was not removed (it is not clear to me that this FISC is even part of that extension), but with 2012 fever ramping up and teabaggers biting at Obama's ankles I am afraid Obama's advisers opted to do the easy thing and not rock the boat - especially after the 2010 election disaster.

    •  um ... (1+ / 0-)
      Recommended by:
      Musial
      While I am disappointed with POTUS on this one - I think he could & should have done more to end or expose this BS and seek changed - he was handed a horrible situation that was created by the Cheney administration in a stacked court and changes to laws made by means of the Patriot Act that give Obama very little room to maneuver as Roberts pulls the strings, not Obama.
      I agree Mr. Obama did not create the situation but the balance of your comment is mis-informed at best and weak tea as a defense.

      Mr. Obama has fully embraced the foundation of precedent and apparatus laid by the Cheney-Bush Bush-Cheney administration and built upon it, doing them proud.

      In fact, Mr. Obama recently answered the question of why he had failed to deliver on his campaign promises to reform the NSA by stating those promises were made before he got elected and faced his responsibilities as President.

      Dry your tears of disappointment; his hunger for reform was never more than a passing fancy and campaign rhetoric, and his actions since speak volumes about his actual beliefs and priorities.

      But if you want to work the PR angle on behalf of the President, I'm sure he'd appreciate it since he has defined the problem as the Public's lack of appreciation.

      Justice Roberts forced Obama to make executive findings to expand NSA powers and declare various persons enemies of the state, then ordering drone attacks to assassinate them?

      Wow, that Roberts has some badass mojo.

      400ppm : what about my daughter's future?

      by koNko on Sun Aug 18, 2013 at 02:50:51 AM PDT

      [ Parent ]

      •  well Obama is the one protecting the system and as (0+ / 0-)

        we saw with Nixon, it's Obama who is going to go down with the ship. As Edmund Burke said about impeachment, that it should rest "not upon the niceties of a narrow jurisprudence, but upon the enlarged and solid principles of state morality." To concede the fourth amendment and the cold war, what used to be a pride in freedom as opposed to stasi and totalitarian communism, is going to cost Obama his job, I suspect. It will be Biden in 2014.

        •  I doubt that (1+ / 0-)
          Recommended by:
          Musial

          Biden's hands are clean in this matter either.  He is after all a member of the current administration and a part of propagating the program.  How much he knew?  Who knows, for sure but I doubt his briefings on the matter are substantially different than the Presidents and it does not seem to me to be inappropriate or "ludicrous" to assume he knew enough that he should have been willing to stand against the surveillance programs.  Maybe it will come out that he did, but I doubt it.  

          Same goes for the recently former Sec State and to me this deals a blow to the Hillary 2016 idea. Or for that matter any member of the National Security Team that knew of the program, but failed to oppose it.  Again, maybe it will come out that members of the National Security Team did oppose and worked vigorously to end the domestic surveillance programs, but I doubt it.

          •  This was Biden's issue in 2006, it's (0+ / 0-)

            unlikely for 2/3 of senate to convict Obama actually, but Biden could say he was an early opponent of NSA surveillance and was loyal to the president, not a decision-maker. Absent shocking evidence, he stays under the radar. It will be interesting to see what his record in meetings has been and whether he now distances himself from Obama's rather lame cover-up.

  •  Many things that occur that are really bad acts (3+ / 0-)
    Recommended by:
    jayden, phillies, koNko

    the banks killing the econocy in 2008 with impunity never get the force of the law to deal with them.  I agree these 12 have violated their oath of office and the Constitution and they should all be removed by act of congress as it says in the Constitution.  Too bad our system has become a sham of smoke and mirrors instead of a reasoned enforcement of the law.

  •  Nuremberg Trials ? Really? (1+ / 0-)
    Recommended by:
    koNko

    OK, I thought about it for five minutes and I'm down with it.
    Let's get 'er done.  

    Rivers are horses and kayaks are their saddles
  •  I have to point out (0+ / 0-)

    That impeachment is a process not an outcome and that you seem to be calling for a remedy applied to the "workers" in the Judicial Branch responsible execute the policy decisions of others not those who made those decisions in the Executive and Congressional branches.

    So how do you expect to cure the disease by treating the symptoms?

    Consider you are calling for the Congress, who passed the legislation to that established the FISA court and the Patriot Act, etc., granting what you assert to be unconstitutional powers to then impeach the appointees exercising the very powers they granted and (presumably) find them guilty by a majority.

    Unlikely to happen.

    And what of the executive branch in the previous and present ministrations who made various secret findings to extend those powers?

    I really wonder what you would expect to come from this if it actually happened.

    400ppm : what about my daughter's future?

    by koNko on Sun Aug 18, 2013 at 02:19:47 AM PDT

    •  You make an accurate observation (0+ / 0-)
      Consider you are calling for the Congress, who passed the legislation to that established the FISA court and the Patriot Act, etc., granting what you assert to be unconstitutional powers to then impeach the appointees exercising the very powers they granted and (presumably) find them guilty by a majority.
      but then the fault you find with this scheme is that it is "unlikely to happen?"  Just unlikely? How about unfair, wrong and hypocritical, too?

      It would be like your boss ordering you to do something on the job, and then firing you for caring out that order.

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