In Secret, FISA Court Contradicted US Supreme Court on Constitutional Rights

English: The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

Yochai Benkler | Guardian UK | Reader Supported News | September 22, 2013

Declassified Fisa rulings reveal a permissive approach to fourth amendment violations disturbingly at odds with supreme justices’

On Tuesday, the Foreign Intelligence Surveillance Court (FISC) declassified an opinion in which it explained why the government’s collection of records of all Americans’ phone calls is constitutional, and that if there is a problem with the program, it is a matter of political judgment, not constitutional law. So, should Americans just keep calm and carry on phoning? Not really.

Instead, we should worry about a court that, lacking a real adversarial process to inform it, failed while taking its best shot at explaining its position to the public to address the most basic, widely-known counter-argument to its position. The opinion does not even mention last year’s unanimous US supreme court decision on the fourth amendment and GPS tracking, a decision in which all three opinions include strong language that may render the NSA’s phone records collection program unconstitutional. No court that had been briefed by both sides would have ignored the grave constitutional issues raised by the three opinions of Justices Scalia, Sotomayor, and Alito in United States v Jones. And no opinion that fails to consider these should calm anyone down.

The newly-released FISC opinion, the first to opine on the legality of the phone metadata collection program since the Snowden leaks brought the program to national attention, is based on two straightforward points.

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Manning ‘Aiding the Enemy’ Charge Is a Threat to Journalism

Bradley Manning – Caricature (Photo credit: DonkeyHotey)

Yochai Benkler | Guardian UK | Reader Supported News | July 20, 2013

Without an informed and free press, there cannot be an enlightened people. That’s what this trial is really about.

Thursday, Colonel Denise Lind, the judge in the Bradley Manning court martial, refused to dismiss the “aiding the enemy” charge. The decision is preliminary, and the judge could still moderate its effect if she finds Manning not guilty. But even if she ultimately acquits Manning, the decision will cast a long shadow on national security journalists and their sources.

First, this case is about national security journalism, not WikiLeaks. At Monday’s argument in preparation for Thursday’s ruling, the judge asked the prosecution to confirm: does it make any difference if it’s WikiLeaks or any other news organization: New York Times, Washington Post, or Wall Street Journal? The prosecution answered: “No, it would not. It would not potentially make a difference.”

Second, the decision establishes a chilling precedent: leaking classified documents to the these newspapers can by itself be legally sufficient to constitute the offense of “aiding the enemy”, if the leaker was sophisticated enough about intelligence and how the enemy uses the internet.

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This Week in Press Freedoms and Privacy Rights

Glenn Greenwald | Guardian UK | Reader Supported News | July 21, 2013

The travesty calling itself “the Bradley Manning court-martial”, the kangaroo tribunal calling itself “the FISA court”, and the emptiness of what the Obama DOJ calls “your constitutional rights.”

I’m on a (much-needed) quick vacation until Sunday, so I’ll just post a few brief items from what has been a busy and important week of events, particularly when it comes to press freedom and privacy:

(1) In the utter travesty known as “the Bradley Manning court-martial proceeding”, the military judge presiding over the proceeding yet again showed her virtually unbreakable loyalty to the US government’s case by refusing to dismiss the most serious charge against the 25-year-old Army Private, one that carries a term of life in prison: “aiding and abetting the enemy”. The government’s theory is that because the documents Manning leaked were interesting to Osama bin Laden, he aided the enemy by disclosing them. Harvard Law Professor Yochai Benkler explained in the New Republic in March why this theory poses such a profound threat to basic press freedoms as it essentially converts all leaks, no matter the intent, into a form of treason.

At this point, that seems to be the feature, not a bug. Anyone looking for much more serious leaks than the one that Manning produced which ended up attracting the interest of bin Laden should be looking here. The Obama White House yesterday told Russia that it must not persecute “individuals and groups seeking to expose corruption” – as Bradley Manning faces life in prison for alerting the world to the war abuses and other profound acts of wrongdoing he discovered and as the unprecedented Obama war on whistleblowers rolls on. That lecture to Russia came in the context of White House threats to cancel a long-planned meeting over the Russian government’s refusal to hand over NSA whistleblower Edward Snowden to the US to face espionage charges.

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