June 30, 2013

"Secret-court judges upset at portrayal of ‘collaboration’ with government."

You wouldn't think federal judges, especially those working on secret things, would go public with their emotions, especially their emotions about how they themselves are portrayed, but that's the headline at WaPo. From the article:
“In my view, that draft report contains major omissions, and some inaccuracies, regarding the actions I took as Presiding Judge of the FISC and my interactions with Executive Branch officials,” [U.S. District Judge Colleen Kollar-Kotelly, the former chief judge of the Foreign Intelligence Surveillance Court,] said in a statement to The Post...
Draft report = this 2009 document by the NSA inspector general, which was leaked recently by Edward Snowden.  (Note that the judge isn't really talking about her emotional "upset." News articles about judges tend to present them as a bundle of emotions, I guess because newspaper editors imagine us readers to click where our emotions lead us.)
Kollar-Kotelly disputed the NSA report’s suggestion of a fairly high level of coordination between the court and the NSA and Justice in 2004 to re-create certain authorities under the Foreign Intelligence Surveillance Act, the 1978 law that created the court in response to abuses of domestic surveillance in the 1960s and 1970s.

“That is incorrect,” she said. “I participated in a process of adjudication, not ‘coordination’ with the executive branch. The discussions I had with executive branch officials were in most respects typical of how I and other district court judges entertain applications for criminal wiretaps under Title III, where issues are discussed ex parte.”
Ex parte = no one participating as an opposing, adversarial party.

34 comments:

elkh1 said...

Question: Do we believe them?

Hammond X Gritzkofe said...

This is a joke, right? Judges complaining about speculation by citizens (i.e. their employers) speculating on the judge's secret proceedings.

Jeeze, people. If ya doesn't like what the gummit does with the power, then don't let it have the power.

There is a Party which touts that view. (Hint, name begins with L.)

Chip Ahoy said...

Maybe it was in her tone, perhaps the velocity of the lamp thrown. Hard to tell.

Jaske said...

I participated...with the executive branch
discussions...typical..entertain applications

Yeah, extreme edit. Those words stand out in my mind.

Eustace Chilke said...

Secret. But not collaborative. Makes perfect sense.

edutcher said...

Charlie Yankee Alfa.

BTW, the Guardian (which has since taken it down) said the NSA was colluding with several Euro nations on data collection.

Hammond X Gritzkofe said...

Ex parte = no one participating as an opposing, adversarial party.

Thanks for the clue, Ann, but we learned the term about 15 years ago. First notice we had of an eminent domain suit to take our home was when Federal Marshals served us the Court Order that the Feds now owned it and we had zero days to vacate.

Larry J said...

Let's see, those courts approved 99.97% of warrant requests but we're to believe they aren't collaborating with the government? Yeah. Right.

Achilles said...

Ex-parte is when someone should be representing us, but there isn't anyone there. Our government is ex-parte.

And we hurt this judges feeeelliinnnggggsss. :(

Don't ask questions or blame Obama for anything. We have a female judge with feelings.

JackOfVA said...

Even in the best case (which I doubt happens) where a particular NSA request is narrowly limited by the FISA court, how can the limitation be enforced? Does the judge send a team of US Marshals with the appropriate TS/SI clearance to the NSA to supervise the limitation, including ferreting out all the back doors and work arounds?

Of course not, rather the NSA is expected to follow the order but there is in fact no reason to believe such is the case. In fact, there's excellent reason to believe the opposite; that the NSA pretty much does whatever it wants regardless of what the FISA court may or may not decide.

JackOfVA said...

Even in the best case (which I doubt happens) where a particular NSA request is narrowly limited by the FISA court, how can the limitation be enforced? Does the judge send a team of US Marshals with the appropriate TS/SI clearance to the NSA to supervise the limitation, including ferreting out all the back doors and work arounds?

Of course not, rather the NSA is expected to follow the order but there is in fact no reason to believe such is the case. Rather, there's excellent reason to believe the opposite; that the NSA pretty much does whatever it wants regardless of what the FISA court may or may not decide.

Mitchell the Bat said...

Judge Kollar-Kotelly's photo at wikipedia makes her look emotionally needy.

The wiki article says nothing about her husband but I presume he's got massive political clout which would explain how she managed to beat out so many others for such a plum job.

It used to be you bought your wife a floral shop, or an antique store, after she got done raising your kids.

Cedarford said...

A dilemma because what "the US citizen has a RIGHT to know!! by libertarian and liberal ideology....
Instantly means "what the Chinese, Iranians, Islamists, Israelis, Russians, Pakistanis have a RIGHT to know."

Nor is "only US citizens are a concern" a good firewall (OK to monitor foreigners but not Chinese -Americans passing on technological secrets, or the Tsarnaev Brothers, or the Israeli embassy Shin Bet spy handler with US citizenship. Because besides the known Islamists with US citizenship, the Chinese and Israeli spy networks rely on secondary contacts with US citizens so pulling up their phone records or Internet, facebook, twitter stuff would typically mean getting some American's data on the 7 degrees of separation principle.

Achilles said...

@cedarford

We had two governments tell us the Tsarnaev brothers were terrorists. It didn't take a massive domestic dragnet to find them. It just took an administration that realized Muslim fanatics are the enemy instead of the tea party.

I agree we don't need to know what our government is doing to enemies outside our borders. But when right wing militias and the Tea Party are the primary targets we have a right to know what the government is doing to its citizens.

Cedarford said...

Larry J said...
Let's see, those courts approved 99.97% of warrant requests but we're to believe they aren't collaborating with the government? Yeah. Right.

=====================
Sometimes the rules and protocols are so well understood and defined between government agencies or citizen-government permitting processes that rejection rates are rare.
A 99.9% pass rate for typist, elevator operator, shoe shine test and permitting likely meant the permitting test was not "too easy" but dumb to have to begin with. So a lot of dumb permits eventually go away. Now we talk about getting rid of emissions permits because the modern cars and boilers, etc. pass them anyways

99.99% of police requests to the FBI Fingerprinting dBase are proper in the legal reviews run. That suggests a process that both sides have learned well over the last 90 years.
It does not suggest a process where the FBI needs to turn down 1 in 10 requests just for shits and giggles just to look better on paper.

On the FISA, NSA warrant process -Gen Michael Hayden has said that there is a large gray area and that there is critical intel in that area but the lawyers within his bureacracy believe careers would be harmed as they are in civilian law enforcement by "rejected warrants". So the gray area is shunned, despite Hayden's pushing. To him, 99.9% means the system is not tested and improved, the large gray area being much newer than the FBI fingerprint protocols gray area due to changing newer tech.....is not shrunk into being right or wrong to do based on learning from court review.

elkh1 said...

The secrets that cannot be disclosed to other judges of the same court. They can't be trusted.

"You are special, you are not like them, you are smarter, you understand, agree?"

"Yes, I am special, I am not like them, I am smarter, I understand, I totally agree with what you are doing."

elkh1 said...

Cedarford said...
"Sometimes the rules and protocols are so well understood and defined between government agencies or citizen-government permitting processes that rejection rates are rare."

99.97% of 100 is different from 99.97% of 100,000.

Seems we should be told the number of warrants requested. How about a ball park figure, plus or minus a thousand to keep their secret?

gk1 said...

It seems like yet another entity trying to flee the stench of "fail" from this administration. Don't blame them, but it is unseemly.

Paul said...

Secret trials with secret evidence and secret meetings.... and no way for the defendant to find out what is the truth.

Nah, these judges don't need to be worried about being portrayed as in bead with the government. It's more of a fact than a impression.

After all, who pays those judges? Who protects those judges? Who coordinates all this?

Why the government! Truth to power!

tim maguire said...

Suggested alternate headline: Star Chamber Judge Upset by Star Chamber's Characterization as a Star Chamber.

Lem said...

News articles about judges tend to present them as a bundle of emotions...

What you want is FISA judges with "grounded emotions", so that way when they come across Intelligence Sources and Methods they wont be able to fly off to Hong Kong with it.

Bob said...

Who writes the paychecks? If this was a corporation self-policing itself the government would be the first to argue the inherent conflict of interest. But we have three branches of the federal government so its all good. Just like when BP says they had three different divisions with safety oversight (corporate governance, production, and engineering). We accepted that, right?

Mogget said...

Hey, Your Honor... Sleep with the dogs, wake up with the fleas!

Joe said...

Why isn't every freaked out about the idea that a "genuine" democracy has secret courts like all the phony democratic republics out there?

The entire point of secrecy is so nobody is held accountable for trampling on constitutional rights of The People. The very existence of the judge's job IS to do the bidding of government. Her failure to see this makes her a dangerous moron.

traditionalguy said...

I suggest a Constitutional Amendment be passed to guarantee the Free exercise of religion and Free Speech.

Why haven't we thought of this before?

traditionalguy said...

We also hurt Gov Hutchinson's feelings in 1775. We exposed the conspiracy to remove English men's rights from the Colonies by stealing his letters outlining the plans.

That single exposure act started the Revolutionary War.

Tyrants hate truth!

Writ Small said...

Some of us are not freaked out for a few reasons:

1) These courts are Constitutional, legal and have Congressional oversight.

2) These courts do not determine guilt or innocence. They determine whether probable cause exists to begin terrorist-related surveillance.

3) There is no evidence of abuse.

4) Should abuse occur, Congress has numerous remedies ranging from additional oversight to program elimination via defunding.

5) Police use very similar "secret court" proceedings to get permission to tap phones of suspected criminal organizations. Think Sopranos. Those domestic programs do not have a history of abuse or overreach.

6) The elimination of these programs would make stopping the next large terrorist attack more difficult.

Larry J said...

elkh1 said:


Cedarford said...
"Sometimes the rules and protocols are so well understood and defined between government agencies or citizen-government permitting processes that rejection rates are rare."

99.97% of 100 is different from 99.97% of 100,000.

Seems we should be told the number of warrants requested. How about a ball park figure, plus or minus a thousand to keep their secret?


IIRC, the article that stated an approval rate said that only 11 requests were denied out of more than 30,000 requests over a span of 30 years.

Jack Wayne said...

Dear Ritmo-Small,

"3) There is no evidence of abuse."

FAIL

Jack Wayne said...

Dear Ritmo-Small,

"3) There is no evidence of abuse."

FAIL

tim maguire said...

Jack, I agree, that fail is important enough to post twice, but, really, he fails on all 6.

Carnifex said...

Yeah...I remember the good ol' days when those of us who thought the government was out to fuck everyone but their buddies was considered tinfoil hat crazy. Now, we've been proved right, and no one has a clue of how to deal with it.

What you do is start hanging the fuckers from trees... eventually. you run out of the bitches. There are NO GOOD GUYS in the government. There are merely people who lie to you to get your vote. And with e-voting, they don't even have to do that anymore...just look at Zero's percentages in Philly precicnts.

Revenant said...

I wasn't coordinating with the government! I was just... meeting with them in secret to discuss things.

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