More Bad News.

Again the New York Times lives up to its role as the Nation's Newspaper of Record and published a most interesting story on information provided to it by the UK's Guardian newspaper. You can read the article here.

In mid April of this year an unknown bureaucrat employed by the FBI, a person of no lesser rank than an Assistant Special Agent in Charge the minimal rank required by section 215 of the Patriot Act, i.e. the assistant manager of an FBI field office located god only knows where applied to a secret US Court, the Foreign Intelligence Surveillance Court or FISA for a secret order requiring MCI Communications dba Verizon Business Services to a secretly turn over call records of all of Verizon's customers in the United States to this unknown and unidentified assistant special agent in charge acting under the authority of the Director of the FBI. Presumably this major domo then turned all the tangible things he received pursuant to the order of Judge Clyde Vinson to the NSA which is another snooping agency of the US Government. The Order which you can read here is a continuing order and requires Verizon to continually turn over the tangible things it accumulates until it's expiration date sometime next month.

The order  is marked Top Secret and the relevant portions of the Patriot Act under which it was issued, section 215 of the Act can be read here. All persons who see the order or upon whom it is served are required not to disclose to any other person the existence of the Order or its contents or the persons upon whom it has been served. The order published by the Guardian required Verizon to turn over all data in its possession or under its control concerning any and all telecommunications originating anywhere and delivered anywhere by any person using Verizon's telecommunications facilities. The Order required that even routing and trunk information i.e. the specific route that any such communications took on the system be disclosed to the FBI. The only exception in the Order was that Verizon was not required to disclose the data for any communications which originated and terminated outside United States. Which is another way of saying turn over all of the metadata generated within the US that used any Verizon telecommunications infrastructure. It is by its own terms a fishing expedition and was issued without any finding of probable cause. It is really important to understand that the failure of the judge to find any probable cause as is required by the Warrant Clause is not the Judge's failure in his duty. Rather it is the fault of section 215 of the Patriot Act which does not require a finding of probable cause. The Congress that enacted this law did not require such a finding. If anyone or any institution is to blame for this the blame must be laid directly at the feet of each and every member of Congress who voted for the law. Again I suppose we have the best Congress that money can buy.

The Warrant Clause of the Fourth Amendment is simple and straight-forward: “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 “ Congress created a mandatory duty and imposed that duty on FISA judges to issue the order (they didn't call it a warrant) when the right person applied for it and asserted that the reason for the application does not solely have its genesis in actions or events protected by the First Amendment.. This is akin to the robo-signing scandals of recent years in the foreclosure industry that those of us who practiced bankruptcy law for debtors saw all the time in motions to avoid the automatic stay and for leave to foreclose on debtor's residences. It is simply a mechanistic recital of magic words and a want list. All the agent has to do is mention the magic words “national security” and ask the judge for the order. The judge then must enter the requested or modified order.

The FISA court while staffed by Article III judges is not an Article III court. That's because the members of that court are not appointed to that court by the President with the Advice and Consent of the Senate, and they do not have lifetime tenure upon “good behaviour”. There is no building called the FISA court building. It operates totally in secret and in the chambers of the judges who serve on that court. The files of the FISA court are not open to the public. You can not connect to the court's computer via PACER and read or download pleadings or orders or even see the docket. The only thing we know about the FISA court is that it is a secret court, its members are appointed from among sitting District Court judges by the Chief Justice of the United States for specific terms of office. All matters pending before the court are secret, all hearings are secret and ex parte. Ex parte means that only one side, the government's side in this case, is entitled to appear before the court, to file applications and to argue before the court. No one is authorized to object to any application or any proposed order of the court. Persons who are subject to orders issued by FISA are not allowed to participate and are bound to secrecy when they are served with a copy of the Order.

The Order issued in this case was issued under the authority of section 215 of the infamous USA PATRIOT Act which was authorized by Congress within days of the attack on the US by Saudi Arabian nationals on September 11, 2001.

The Patriot Act not only does not require a finding of probable cause from the application before the FISA court but section 215 mandates that the court shall issue an order for the production of tangible things when application is made (1) by an appropriately titled FBI agent (2) who mutters anything about National Security as its justification, and, (3) if the the request is made on grounds that are not “solely” based on the exercise of First Amendment protected rights of the person(s) who are the proposed subject(s) of the requested order. The FISA court can modify a proposed order but if there are no standards set out in the statute governing the order's issuance in the first place then what standards are to be applied by the FISA judge in order to modify the requested order? It is quite apparent to anyone who reads the statute and is of normal intelligence that the likelihood of a court modifying a request is somewhere between non-existent and the proverbial snow ball's chance in hell.