09 June 2015

Obama's Lawless Behavior in Support of the Security State

You may recall that the NSA bulk data collection of phone records were ruled by an Federal appellate court.

It not turns out that the Obama administration tried to get a ruling from the FISA court saying that they could ignore this ruling.

The interesting bit here is that the FISA court is technically a district court, and so is subordinate to an appellate court.

This shows a complete contempt for the rule of law:
The Obama administration has asked a secret surveillance court to ignore a federal court that found bulk surveillance illegal and to once again grant the National Security Agency the power to collect the phone records of millions of Americans for six months.

The legal request, filed nearly four hours after Barack Obama vowed to sign a new law banning precisely the bulk collection he asks the secret court to approve, also suggests that the administration may not necessarily comply with any potential court order demanding that the collection stop.

US officials confirmed last week that they would ask the Foreign Intelligence Surveillance court – better known as the Fisa court, a panel that meets in secret as a step in the surveillance process and thus far has only ever had the government argue before it – to turn the domestic bulk collection spigot back on.

Justice Department national security chief John A Carlin cited a six-month transition period provided in the USA Freedom Act – passed by the Senate last week to ban the bulk collection – as a reason to permit an “orderly transition” of the NSA’s domestic dragnet. Carlin did not address whether the transition clause of the Freedom Act still applies now that a congressional deadlock meant the program shut down on 31 May.

But Carlin asked the Fisa court to set aside a landmark declaration by the second circuit court of appeals. Decided on 7 May, the appeals court ruled that the government had erroneously interpreted the Patriot Act’s authorization of data collection as “relevant” to an ongoing investigation to permit bulk collection.

Carlin, in his filing, wrote that the Patriot Act provision remained “in effect” during the transition period.

“This court 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”.
While it is true that  the FISA court is not technically under the 2nd court of appeals, which ruled the program illegal, because they are not in the 2nd district, (technically, they are not in any district) but blithely asking the court to overrule an appeals court shows a complete contempt for due process and the rule of law.

Worst Constitutional Law Professor Ever!


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