Thursday, June 20, 2013

Tortured Language: Is the FISA "Court" Really a Court?

Trey Smith

If you look up the word, court, in terms of a judicial court, you might find the following:
Judicial courts are created by the government through the enactment of statutes or by constitutional provisions for the purpose of enforcing the law for the public good. They are impartial forums for the resolution of controversies between parties who seek redress from a violation of a legal right. Both civil and criminal matters may be heard in the same court, with different court rules and procedures for each. (emphasis mine)
The words in bold above are very important in relation to the Foreign Intelligence Surveillance Act (FISA) "Court" because something is missing. As several reporters and commentators have pointed out, there is only one party allowed to address the FISA Court: the government. No party with a differing or opposing viewpoint is permitted to testify or attend. In other words, only one side of an issue is presented and the judge or judges make their determinations based on this one perspective.

In such a situation, it makes it nearly impossible to say that the FISA Court has the ability to consider different legal points of view. With the entire process so one-sided, it is difficult to argue that this particular "court" provides much of any oversight.


What if the manner in which the FISA "Court" operates was applied to the situations and circumstances we might find ourselves in as part of our routine lives? Would you consider these procedures fair and just?

You are shopping at your local grocery store. All of a sudden, two police officers appear and inform you that are you are being arrested for shoplifting. What are you talking about, you ask. I'm just shopping. Look at all the stuff in my shopping basket. Here, pat me down. You won't find anything. Look at the store's surveillance camera. You will see that I haven't shoplifted a thing.

But the officers don't pat you down and they don't to look at the surveillance tape. They simply place you in handcuffs and take you downtown. Your arrest, though you don't know it, is based solely on the store manager's testimony that you were attempting to shoplift an item.

So, you're sitting in a jail cell. As is your constitutional right, you request to speak to your attorney. As you are talking to the attorney by phone, a jail officer interrupts to tell you that you have been convicted of shoplifting in the local court. What do you mean I have been convicted, you ask. I never got the chance to tell the judge my side of the story. For that matter, I never heard the so-called evidence against me. How can I be convicted if I haven't even had my day in court?

Unbeknownst to you, the store manager told the prosecuting attorney why he believed you were shoplifting and the prosecuting attorney testified in court about this information and presented it as ironclad fact. After the testimony was finished, the judge issued her ruling.

Your attorney files a notice of appeal on your behalf. However, you quickly lose the appeal because the case is heard without your attorney present and with only the prosecuting attorney presenting arguments.

Would you call such a court system fair and just? Do you think such a court system would have the ability to rein in police abuses and prosecutorial misconduct?


To see how the FISA "Court" actually operates, Glenn Greenwald has written another groundbreaking article on the topic.


Cenk Uygur and Sam Seder discuss the key point I raised above and more in the video below.

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