Secret Court Unconstitutional Foreign Intelligence Surveillance Act (FISA) ACLU Legal Director, Columbia University Knight Institute Executive Director, G.W. Bush Former Solicitor General Together Petition U.S Supreme Court

OPINION GUEST ESSAY What Is America’s Spy Court Hiding From the Public? June 2, 2021 Credit...Associated Press By David D. Cole, Jameel Jaffer and Theodore B. Olson Mr. Cole is legal director of the American Civil Liberties Union. Mr. Jaffer is executive director of the Knight First Amendment Institute at Columbia University and former deputy legal director at the A.C.L.U. Mr. Olson was solicitor general under President George W. Bush and is a member of the Knight Institute’s board. One of the most powerful courts in the country, the Foreign Intelligence Surveillance Court, is cloaked in unnecessary secrecy. It authorizes panoramic surveillance programs that can have profound implications for the rights of millions of Americans, but many of its significant decisions have been withheld from the public. The three of us have different views about how expansive the government’s surveillance powers should be. One of us, as solicitor general of the United States, defended the broad authority granted to federal officials to track and intercept communications for law enforcement and intelligence-gathering purposes under the U.S.A. Patriot Act; the other two have been among that law’s most active critics. But we agree about one crucial point: The needless secrecy surrounding the surveillance court is bad for the court, the intelligence agencies and the public — and it is also unconstitutional. We said this to the Supreme Court last month in a petition filed on behalf of the American Civil Liberties Union, arguing that the public should have access to the surveillance court’s decisions. And in briefs filed with the court last week, many others — including former intelligence officials, civil society groups, and a major technology company — reinforced the same point. Congress created the surveillance court in 1978 after a congressional committee found that the intelligence agencies had abused their surveillance powers in ways that violated Americans’ rights and jeopardized our democracy. The court was charged with overseeing certain kinds of surveillance conducted for national security purposes. In its original incarnation, its role was narrow. It authorized a few hundred wiretaps a year. The Supreme Court: Upcoming Cases A Big Month. June is peak season for Supreme Court decisions. It is the final month of the court’s annual term, and the justices tend to save their biggest decisions for the term’s end. 4 Big Cases. The court is set to rule on the fate of Obamacare, as well as a case that could determine scores of laws addressing election rules in the coming years. It is also taking on a case involving religion and gay rights and one on whether students may be disciplined for what they say on social media (here’s an audio report on that subject; and here’s where public opinion stands on several of the big cases). What to Watch For. The approaches that Amy Coney Barrett, the newest justice, and Brett Kavanaugh, the second-newest, take. They will be crucial because the three liberal justices now need at least two of the six conservatives to form a majority. Before the death of Ruth Bader Ginsburg, the liberals needed only one conservative. Looking Ahead. Next year’s term, which will start in the fall, will have cases on abortion, guns and perhaps affirmative action, and could end up being the most significant term so far under Chief Justice John Roberts. But the court’s role has since been transformed. After the Sept. 11 attacks, Congress expanded the government’s surveillance power. New technology also made possible more sweeping and intrusive forms of surveillance. Today, the court is frequently asked to evaluate surveillance programs whose scale is staggering, and its opinions in such cases are of immense consequence for Americans’ privacy, expressive and associational rights. For nearly a decade, for example, the court authorized the government to collect records on most phone calls made or received in the United States, detailing who called whom, when, and for how long — all without any suspicion of illegal activity. In another opinion, the court upheld the government’s practice of scanning Americans’ emails for intelligence purposes as those communications enter and leave the country. More recently, it permitted the F.B.I. to fish for information about Americans in huge databases of international emails, online messages and web chats obtained without probable cause. And in a series of opinions, including one involving the F.B.I.’s investigation of Carter Page, a onetime campaign adviser to Donald Trump, the court addressed episodes in which the government was not fully candid about the intelligence agencies’ surveillance of Americans. These opinions are among the subset that have been published — some of them in response to the 2015 U.S.A. Freedom Act, which requires the intelligence agencies to conduct a declassification review of opinions that include significant legal analysis. The publication of these opinions helped inform public debate, and in some instances led to legislative reform. But many of the surveillance court’s opinions remain secret, and the U.S.A. Freedom Act does not ensure that the court’s future opinions will see the light of day. The surveillance court has made clear it believes the executive branch should have the last word on whether the court’s opinions should be published. When the A.C.L.U. challenged this conclusion, both the surveillance court and the appeals court that oversees it held that they lacked authority even to consider the A.C.L.U.’s claim. This state of affairs is not reconcilable with the Constitution. The Supreme Court held four decades ago that the First Amendment protects the public’s right of access to certain judicial proceedings. It is now widely accepted that the public has a First Amendment right of access to judicial opinions except where redactions are necessary to serve a compelling government interest and are as limited as possible. The surveillance court has exempted itself from this rule on the ground that it deals with national security matters. But other American courts address such matters, too, and yet they honor the First Amendment right of access as a matter of course. They publish their opinions even when they concern the same questions the surveillance court addresses in its opinions, such as the legality of digital searches conducted for national security purposes. The unwarranted secrecy surrounding the surveillance court impoverishes public debate about government surveillance. It means that surveillance power can grow invisibly and easily become unmoored from the democratic consent that gives it legitimacy. The friend-of-the-court brief filed by former government officials — including James Clapper, a former director of national intelligence; John Brennan, a former C.I.A. director; and Donald Verrilli, a former solicitor general — makes exactly this point. Unnecessary secrecy also undermines public confidence in the surveillance court. As the Supreme Court once observed, “People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” The surveillance court’s suggestion that it is not subject to the usual constraints of the First Amendment — and, indeed, that it lacks authority even to consider the First Amendment question — has only engendered suspicion of the court, and of the surveillance the court approves. No one — not the public, not the intelligence agencies and not the surveillance court — benefits if public debate about these questions is hobbled by unjustified secrecy. The petition we and our colleagues filed in the Supreme Court seeks to bring the surveillance court’s practices in line with the Constitution. The Supreme Court should make clear that the same First Amendment rules that apply to other courts apply to the surveillance court as well. David D. Cole is legal director of the American Civil Liberties Union. Jameel Jaffer is executive director of the Knight First Amendment Institute at Columbia University and former deputy legal director at the A.C.L.U. Theodore B. Olson was solicitor general under President George W. Bush and is a member of the Knight Institute’s board. The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com. Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. Copyright 2021 Martin P.All World Rights Expressly Reserved (no claim to New York Times Content - Credit To Associated Press)

"The Torture Memos" Rationalizing The Unthinkable - Obama Administration 2009 Public Release "Including Former Classified 'Top Secret' Legal Analyses" Of "The Legal Counsel Of The United States Department Of Justice ("DOJ") Complete Memos" 2005-2009 In Which As Directed And Ordered Legal Counsel Used Convoluted Logic And Tortured Reasoning "Twisting Language And The Law To Rationalize The Unthinkable" Not Discerning "True" Meaning Of Plain Words Forbidding All "Torture" But Rather Bastardize It To Justify The CIA (Totally Failing To Predict 9/11 Attacks) Illegal Use Of Mental And Physical Torture, Commission Of Atrocities And Crimes Against Humanity With Full Complicity Of Criminal "Little Shrub" Bush 43 Administration Officials In Direct Violation Of U.S. Human Rights Laws And International Treaties Against Torture Straight To Hell Boys And Girl

       Thursday, 30 October 2014, WASHINGTON, D.C. -  As the horrifying early moments unfolded in the escalating frightened growing confusion of 11 September 2001 informed by no quality "intelligence work" but rather largely contradictory anecdotal information from sources such as flight attendants and radar operators as to exactly what was unfolding on the East Coast of the United States there were at least two men whose response could be taken for something outside of the ordinary American considering their utter failure in their responsibilities in their official capacities for the United States Government given the coming realization of the magnitude of what was occurring with no coherent warning whatsoever.
       One of the two being not-really-elected "President" George "little shrub" Bush already struggling his way through an elementary school level book as he was desperate not to make the kind of error that still haunted the political memory of former GOP heavyweight "potatoe" Dan Quayle which still resonated with shrill little girls' laughter through the hallways of America's elementary schools.
       Now on top of that memory still haunting him "little shrub" had nearly been knocked entirely off course from his "read-out-loud" by the approach of an aide whispering to him that "one of the Twin Towers had come down". And what on earth was not-really-elected "President" Bush supposed anyhow to do even to start to try to digest that piece of somehow seemingly significant information at the very same moment he struggled just to make a transition to the next paragraph without exposing to the rapt third-graders before him the challenges posed him by the overwhelming task of reading third-grade level English as if it were his first language?
       Another couple minutes passed and sure enough another aide entered and told "little shrub" that Vice-President Cheney himself (of all the people that no one wanted to speak with even on a good day) was on the phone and insistent to boot as the aide whispered "Sir, the second of the Twin Towers" has come down. That sounded bad. "Little shrub" continued reading for a couple more minutes as the class became increasingly restless sensing the dis-ease of the men in suits. "Well how many of these Twin Towers are there?" the not-really-elected "President" asked.
       "Two sir". The aide handed him the dreaded Vice-President Cheney. "Dick I understand that there were two of these towers and they both have come down which leaves none, I think".
        "That's right, you moron". "Little shrub" knew it must have been pretty important then. Cheney was not in the habit of calling his "boss" such things as his usual practice was merely to ignore the "President" and not tell him anything at all as he issued orders or had aides count out stacks of hundred dollar bills for Blackdeath's latest "no-bid" contract advance.
       "Any idea what happened, Dick?" "Little shrub" could see the Secret Service detail were coming to get him.
       "They were hit by large passenger planes that had been hijacked by Arabs. We have a list of their names with photos." The "little shrub" was impressed by how quickly even with all his "business connections" that Cheney had come up with that information and told Cheney so. "We should have them information we hired them."  He reminded "little shrub" that his brother Bush oddly enough also had the contract for the Twin Towers security.
       "Is this serious, do you think, Dick? Do you think I better come back? How do you know they're Arabs if it just happened five minutes ago and they crashed into skyscrapers and knocked them down?"
       "Like I said we hired them. We know. I have already made arrangements for you to take the exact same motor route back to the airport so no one thinks anything suspicious is going on. You are going to fly around the country on your Air Force One out west somewhere so no one can find you. I will be in the Situation Room, I am already at the White House, and I will be in charge from here on in."
       "Thanks, Dick. I really appreciate it. Do you know if my golf video game is on my plane right now? I thought it was going to be a shorter trip?
       "You do not worry "shrub". If it is not we will have a couple fighters and an AWAC land in a Wal-Mart parking lot in the Midwest and have it brought up to you."
       "Thanks, Dick. You are the best. Let me know what happens with this towers thing."
       "Sure Mr. President. Do not worry if I do not get a chance to call for a while. You can always see what is happening on FOX."  With that Dick Cheney hung up the phone and glanced around the situation room lit up like a fireworks display. He was not quite sure who or why yet but they had the oil fields marked all over the globe. He rubbed his hands together in anticipation. Meanwhile he called over some of the old Halliburton boys and told them to start drawing up their own contracts to move into Afghanistan first and draft some preliminary plans to attack Iraq along the best pipeline routes.
       The news reports waiting for months with just a few details to be filled in would be going out over the world news wires in a matter of moments. Lesson One implemented in less than two hours. Cheney had control of the narrative. He got some Congressional wonk to begin work cutting and pasting the "Patriot Act" crossing out "beta" and had the staff beginning to assemble the 400+ page bill to be on every Congressperson's desk by 4 a.m. September 12th.
       Beautiful it contained everything that Congress had rejected before in recent years of proposed Executive Branch powers. He figured they would give them five to ten minutes to read it before the critical vote, a matter of "national" security. He made a note to have the word "terrorism" thrown in at least once a paragraph.

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       Although loyal readers the Ninth Amendment cannot say with certainty how much of the above is precisely correct because of differing recollections the gist of it certainly accurate. Unfortunately what follows and was summarized in the headline to this post is. As readers may imagine there were quite a number of U.S "national security" groups who were caught on September 11, 2001 with their pants way down, particularly those most well-known perhaps of the "acronymed" groups including the CIA, FBI, NSA and so on.
       Sadly the facts alluded to in the headline to this post are entirely true. In the wake of the September 11, 2001 tragedy there were a great many diverse representatives of the burgeoning "national security" field who apparently despite the tremendous growth in resources, rhetoric and so on had very little indeed to show for their level or the Country's level of preparedness on September 11, 2001. Cheney pulling Bush behind with a crew of  newly emerged "experts" grabbed from their desks who themselves admitted that despite being shown non-stop marathon slideshows for something like twenty hours at a time in a cubicle in the Pentagon really could not say just as the CIA that there was any solid evidence of "WMDs". Nevertheless Cheney in very short order had gotten his wars in Afghanistan and Iraq. For him it truly was "Mission Accomplished".
       Now of course came time for some of the shamed "national security" agencies" to begin their push from all fronts for "expanded" incursions into Americans' civil rights achieved not so much by honest debate as by deception and the type of legal trickery mentioned in the headline above. These were described by the euphemistic term "enhanced interrogation techniques.
       In any case unfortunately this blatant mischaracterization on the meaning of words and laws did tragically find its way also into the area of torture by the United States. How many have ever asked if sincerely perhaps it was terrorists themselves who having planned so much else so carefully had also schemed to raise the level of "terror" such that it resulted in the horrific attacks on U.S. Constitutional rights we have seen perpetrated by legislatures, prosecutors and upheld by the courts as well as acts of torture we never before would have conceived against foreign (or our own) nationals. In any case there is one well-known rumor or a sitting Ninth Circuit U.S. Court of Appeals justice who got his seat for life in a deal with the criminal Bush administration in return for writing the original bogus "Torture" justification memo which spawned all the others.
       In any case the Ninth Amendment editorial board wishes to emphasize that under the Obama administration in 2009  "The Torture Memos" were released which is a comprehensive collection of all legal memos prepared by the Office of Legal Counsel from 2005-2009 of the DOJ as well as of the CIA which has been described as only having redacted material to eliminate redundancy. This may not be altogether true as there are a couple allusions on the book jacket to some sections still being classified.
       "The Torture Memos"  - Rationalizing The Unthinkable - released in April 2009 by www.thenewpress.com is Edited and With An Introductory Commentary by David Cole, Professor of Law at Georgetown University, with credentials also including a frequent contributor to the New York Review Of Books as well as others. He lives in Washington, D.C. The Foreword is by Phillippe Sands, QC, a leading international lawyer, a law professor at University College, and author of also of "Torture Team". He lives in London. The Torture Memos although contained in one volume is not a thick book. The Ninth Amendment recently was able to purchase a copy for $3.00 used conveniently shelved with Girl Scout Books.
       "The CIA's Office of Legal Counsel, While Saying It Would Not Use Post 9/11 To Allow The CIA TO Use Torture Techniques It Has In Fact Allowed The CIA To Use Whatever Torture Techniques It Wanted". "Chilling. We cannot continue to look the other way." Senator Patrick Leahy, In conclusion: "Rather than demand that the CIA conform its conduct to the law, the lawyers convoluted the law to the CIA's desires". Readers interested for more details concerning these sick U.S. torture programs endorsed by counsel with the DOJ Office of Legal Counsel including enshrining for all time the names of attorneys and perhaps a sitting Justice on the Ninth Circuit Court of Appeals bring shame to their children and all future generations as well as to the practice of law including further information on the infamous memos used to justify the heinous atrocities perpetrated by the C.I.A. and doubtless continuing to this day in overseas C.I.A. and military prisons may consult the below article for further information.

https://en.wikipedia.org/wiki/Torture_Memos

Copyright 2014 Martin P. All World Rights Expressly Reserved