The Foreign Intelligence Surveillance Court was wrong back in May, when it ruled that the expansion of wiretap and surveillance guidelines requested by Mr. Ashcroft under the Patriot Act was illegal.
This unanimous ruling is from the appellate panel of judges that oversees the secret FISC - federal judges drawn from three different federal circuits: the Sixth, Ninth, and DC circuits.
According to this ruling, neither the Constituion nor the law requires the restrictions imposed by the FISC.
The net effect of this ruling, so far as I can see, is that wiretaps may be approved if “a significant purpose” of an investigation is counter-terrorism, rather than the sole purpose being counter-terrorism.
This is now the law. I have some commentary, but I’ll reserve it.
Sounds like John Ashcroft is entitled to an apology from those who criticized him for trashing the Constitution. We now have evidence that he understands the Constitution better than they do.
What little I’ve seen about this (the original decision was made in a “secret court” which causes some trouble in finding out just what is going on) says that the special panel of Circuit Court judges appointed by the chief justice made a decision interpreting the provisions of the 2001 statute, the so-called USA Patriot Act, not on the interplay between the Act and the Constitution. In any event, it seems a little early to start naming bridges and dams after the attorney general. If some one can give us a citation to the special panel decision it might help—I’m not about to accept Fox News’ analysis of this thing, not that any of the conventional networks do an any more reliable job.
I can’t believe I live in a country with secret courts that issue secret binding advisory opinions (surely not an article 3, section 2 case or controversy… let alone an article 3 section 2 court!). When the constitution gets in the government’s way, it can get a “secret court” to rubber stamp “REVERSED” on a classified opinion, without any opposition/argument. Horrible, a travesty of the basic principles this country was founded on, and completely, absolutely, 100% unconstitutional in at least a dozen different ways. Any government attorney arguing before this secret court (namely ashcroft) should be disbarred.
Last I saw the constitution it was stuck to the bottom of Ashcrofts shoe as he was leaving the bathroom.
This ‘secret court’ nonsense makes me want to vomit. Then again its not the first time America has caved in on its “principles” oooh no. But that doesnt make me any less quessy about slime like Ashcroft doing the funky chicken all over it.
It is a “secret” court only in the sense that the subject matter brought before it is secret, as it deals with foreign intelligence matters. Its members are not anonymous. The opinion discussed in the OP is published, as was the original opinion which the OP’s overrules.
It has just as much authority as any federal circuit court to overrule a federal district court opinion.
So what this comes down to is a sense that you believe it’s unconstitutional. But your opinion is not only untutored, but unauthoritative. The appeals court’s opnion, on the other hand, is binding unless reversed by the Supreme Court. This is precisely how, say, Miranda v. Arizona became law. Now you would sputter indignantly if someone suggested a suspect could be questioned for hours without being told he had a right to a lawyer. But before a federal court decided Miranda, it was quite permissible.
The words of the Constitution’s Fourth Amendment have not changed since 1789. Using your standard, I could argue that Miranda was “…a travesty of the basic principles this country was founded on,” since it reversed a standard held for almost 200 years.
But, see, the way it works is, Congress passes laws, and the courts interpret the laws in harmony with the Constitution, if they are, or squashes them, if they are not harmonious therewith.
You may argue that this decision is a bad one, or a poor direction for the country to go. But you can hardly argue that it flouts the Constitution, unless you’re willing to chuck out Miranda, Mapp, Wong Sun, Strickland, Batson and Florida v. J.L. as well.
Bricker, the opinions are NOT published (go find it on lexis or westlaw for me). They’re classified. Every now and then they will unclassify excerpts from one of the opinions, but that’s just if they feel like it (and who knows if they’re even true excerpts).
It is not just another court of appeals. The judges are appointed by Rehnquist, not the president with the advice and consent of the senate (so it’s not an article 3 section 2 court). The most disturbing aspect is that only one party ever appears before the court - the US gov’t. No adversarial system in this court. That means no case or controversy, that means it’s giving advisory opinions. Those would not be binding, let alone capable of reversing a “lower” court.
Miranda, Mapp, Wong Sun, Strickland, Batson and Florida v. J.L. were all rendered by legitimate courts with true consitutional authority to render binding opinions, the opinions are public for all to see, and they were based on arguments proffered by at least two opposing parties. Not a rubber-stamp ex parte proceeding by an article 1 judge reversing a legitimate court.
I guess it depends on what you mean by “true Constitutional authority.” I agree that these “legitimate” courts have had the right to render these decisions, based on long, long practice, going back to John Marshall. However, there are no words in the Contitution giving them such a right. It was an interpretation that they had the right to overrule laws, just as it’s an interpretation that this “Secret Court” has similar rights.
Re-reading the OP, it seems as though the judges are appointed as appellate judges by the President and confirmed by the Senate, although they may by selected for this particular court by the Chief Justice.
BTW if the “Secret Court” had found the wiretaps to be unconstitutional or iillegal, would you still be attacking their validity, Kalt?
The circuit appeals system is not constitutionally-created. It finds its authority in an act of Congress. The Constitution merely says:
Congress ordained and established the FISC, in the same way it ordained and established the Ninth Circuit Court. There is absolutely no basis for you to declare that one is legitimate and the other is not.
