Secret Decisions of Secret Courts: Anathema to American Justice

July 7, 2013 § 4 Comments

A front page story in today’s New York Times describes how the FISA Court is creating a secret body of law that affects the life of every person who has lived in the United States during the past six years and millions of others who live in other countries.  Here is a link to that important story::


I believe this story describes an issue  far more important to the future of our country than the government mendacity exposed by the Pentagon Papers.  To appreciate how fundamentally this threatens a vital principle of our legal system, it is necessary to consider its implications.

First, we claim that our government’s legitimacy is based on our consent, the “consent of the governed”.

Second, our Constitution provides that law making is reserved to the Congress.

Third, our legal system is based on two kinds of law:  statutory law, including constitutional law, and common law.  Common law is a system of law we brought with us from Britain.  It is based on the accretion of precedents consisting of decisions of previous courts.  The doctrine according to which it develops is stare decisis, which is Latin for “to stand by things decided”.  The principle involved is that the law should be applied alike to similar issues; that its interpretation should not depend upon the identity of the litigants.  This enables people to predict, with a reasonable degree of confidence, what the decision of a court will be, given a particular set of facts.  It insures that justice for one will be justice for all.

Fourth, we, the people, choose those to whom we entrust the power to make laws that affect us.  We make those choices through democratic elections.  To make those choices intelligently, we need and are entitled to pertinent information, so that, if the lawmakers we chose do not exercise their authority to make laws that please us, we can fire them and hire replacements.

I apologize for repeating these elementary principles.  I know they are taught, or should be taught in  public schools.  I do not intend to condescend to my readers but, given the nature of the recent discussion of the FISA court and the N.S.A. surveillance it  has been authorizing, I have some doubt that the commentators are paying appropriate attention to these fundamentals of our government and our political system.

We now know that the FISA court, eleven judges appointed by Chief Justice Roberts, ten of whom are appointees of Republican Presidents, has, in a series of hundreds of decisions, each one building on its predecessors according to the doctrine of stare decisis, erected a legal structure that approved the gathering by our government of a  trove of data containing every tiny detail of every move, choice, purchase, communication, financial transaction, preference and relationship of every person in the United States and, as stated, uncounted millions in other countries.  That data, in turn, has been opened for analysis according to rules and choices made by government officials and private contractors’ employees, supervised by secret decisions made by the FISA court.

Without knowing what, if any, polling has been done following these disclosures, I feel absolutely safe in assuming that most people, here and abroad, were astonished when they discovered that such intimate details of their lives were recorded in searchable databases owned by the United States government.  That astonishment means that the above-stated system of government has not been operational concerning this matter.

It is true that, theoretically, the members of Congress have been able to find out about these developments.  It is also true that “theoretically” is the operative word in that sentence.  It is obvious that a majority of the members of the House and Senate did not take the trouble to find out the details of FISA’s proceedings and decisions.  It is also true that, when a Senator, e.g. Senators Wyden and Markey, tried to find out some of the details, N.S.A. declined to answer their questions.

Because of this lack of public knowledge, the Fourth principle stated above, did not work.  We, the people, did not express our opinions about what N.S.A. was doing or how the FISA court was interpreting the laws our elected representatives enacted because N.S.A and the FISA court kept what they were doing a secret.  In other words, democratic government was sidelined behind a wall of classified insulation.

I am outraged about this and I think others should be also.   If we no longer believe that we can bear the risks of living in a free country, we should stop pretending otherwise.

I am afraid my fellow countrymen are in danger of falling into a trap that government always uses to lull guileless people to sleep:  “If you haven’t anything to hide, you need not worry about our right to pry into your personal life.”  I wish the FISA court would decide that personal diaries might offer “foreign intelligence” and order all diaries submitted for copying by a government agency.  Maybe then, people would wake up and realize that, regardless of whether they “have anything to hide”, they don’t like the government intruding into their private lives.  Of course I”m dating myself with that fantasy.  No one keeps a diary anymore.  They post everything on Facebook or Twitter or some other public forum.

The insidious and sinister nature of the N.S.A. surveillance program is that it enables the government computers to fish for “patterns” that are then interpreted to mean various things about the person whose data is analyzed.  When we go about our daily lives, we do not consider how our choices made over a period of years can be filtered and sorted to appear dangerous or scandalous or embarrassing.  When all the data is available, “connecting the dots” depends on the biases and motives of the connector, not necessarily those of the connectee.

There is a good movie that perfectly illustrates the concerns I am trying to express here.  “Lives of Others” is a 2006 movie about the Stasi, East Germany’s intelligence police and their obsessive accumulation of information about East German citizens.  I don’t know where or if it is still available.  I assume it is probably on sale at Amazon.  If it becomes available on some TV channel to which you subscribe, check it out. Like “1984” and “Brave New World”, it expresses dramatically what I’m trying to express here.

I have no reason to believe that the present government has malevolent intentions concerning the use of the data that has been accumulated.  I do not know, however, about the intentions of those who may have access that data in the future.  It is a “weapon of mass  destruction” whose ownership and control  should not depend on the outcome of future elections.

James Mason, a legal scholar and one of our founding fathers, once wrote, “Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.”

§ 4 Responses to Secret Decisions of Secret Courts: Anathema to American Justice

  • Nivien Saleh says:

    Thank you for this wonderful commentary. If it’s possible to leave comments to the NYTimes story (just as I am leaving a comment to your commentary), I suggest you leave a link to your blog there. Or better yet, I suggest you get your text published in a newspaper.


  • Bob Hall says:

    Thank you for the kind words. I don’t know how to submit a comment to the NY Times. I’ll try to find out if it can be done.


  • Bob Hall says:

    Here is a dissent to my arguments about the secrecy of the FISA court, submitted by my friend with whom I have been debating these issues.

    “‘m loath to quote the Iron Lady… and indeed this is a first. However, she coined an interesting acronym… TINA. There Is No Alternative. As I think I wrote previously to you, this technologic genie (the ‘modern world’ writ large) isn’t going back into the bottle… a lesson resoundingly reinforced just this moment by my typing the very line expressing the thought. When I wrote ‘technologic’… it came up as misspelled. When I right-clicked it, a note popped up on my screen asking if I would like to use the google service that would route all my typos to the main google spell check server! I of course answered yes, and … another small step for this man, another small step for mankind as we move forward into an ever more technologically controlled world.

    I understand and agree with your disquiet regarding the potential abuses of the intelligence side of the modern state, particularly under another far different presidency. However, unlike yourself, I have no illusion that it can be reversed. Thus, I’m faced with the task of your exemplary contract lawyer… to look at it and find the weak spots… and try and fix them. I won’t flatter myself to believe that I have nearly enough information to know where those may be, but my lay, practical mind sees two quick ways to make the system far more resistant to abuse.

    First, to insert the position of a constitutional ombudsman into any process that asks FISA for a decision. While there in fact isn’t a clear ‘defendant’ who’s part this devils advocate would represent in adversary to the government, it would bring counter arguments to bear when decisions were being made that come to form the common law of this court… and change them to some degree. The second thing would be a REQUIREMENT that some fraction of the elected national bodies be FULLY informed, and have the ability to sit in on and have a voice in the FISA rulings process. This has the same effect as the first, and directly involves the peoples representatives in any processes of the necessarily secret proceedings.

    These are shots from afar, and I’m very sure better minds could propose much more effective ways to protect any group or individual from abuse by the power held by the government. TINA. This genie is out, growing, and likes the job.

    all the best


    • Bob Hall says:

      TINA, to me, sounds like a response I have come to dread. It usually comes from a judge or other authority figure, about to deny relief from some decision or law that the speaker knows full well will leave in place an unjust or unwise result: “My hands are tied.”

      i have an almost faith-based belief that the law, as it has developed over the past several centuries in Britain and America, can devise a way to correct every injustice if the judges and lawyers are creative and courageous enough to think of an orderly way to identify an apt analogy to some previous doctrine that suggests an appropriate remedy.

      So, I think there are alternatives to the present FISA court’s secret jurisprudence. While I appreciate my dissenter’s willingness to offer some antidote to the court’s secrecy, his suggestions do not result in disclosing that jurisprudence to the public. That means that, unless we depend on leakers like Edward Snowden, the voters will never find out how their representatives have interpreted the laws they enacted to permit the kind of domestic surveillance that has occurred.

      Here are some ideas about how the present system might be reduced to the boundaries that were scrupulously observed before Bush and his Rumsfeld-Chaney team took over.

      One basic thing I know about databases is that they can be partitioned and access to those partitions can be protected . One basic principle of our government’s spying activity has been, until the advent of this monstrosity foisted on us by the Bush neocons, that CIA spying was not allowed in the United States; it was limited to activities in other countries. If wire taps and other accoutrement of spying was permitted in the United States, it had to be done by the FBI, subject to the the 4th and 5th Amendments, administered and enforced in federal courts. The “F” in FISA stands for “Foreign”. That was not accidental; it was a deliberate effort to maintain the protection of the Constitution.

      As I understand it, every individual entity that accesses the internet is given an IP address. I assume that a computer literate technician could identify those IP addresses that are located within the boundaries of the U.S.. Then, the metadata storage could be partitioned to exclude those IP addresses located within those boundaries. And that partition could define a database that could be either destroyed or protected from access except through the processes required by the aforesaid amendments.

      This is speculation, not the result of investigation. I may be wrong and it may not be possible to do what I suggest. My belief is that, if my friend is right and there is no way to keep the present metadata accumulation from being used as it is being used, then, as I have stated in a previous blog post, I think the storage of that data must be destroyed in a way that precludes its resurrection.

      As we seek shelter from foreign terrorists, we must not abandon those principles that distinguish us from their ideology. Our Bill of Rights must not be sacrificed as a tactic in the so-called “global war on terror.”



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