L. Neil Smith’s THE LIBERTARIAN ENTERPRISE
Number 913, March 12, 2017
The Fake Court
by J. Neil Schulman
Special to L. Neil Smith’s The Libertarian Enterprise
We’ve been hearing a lot in the news about applications for a “FISA court” warrant by someone in the executive branch—possibly by request of the 44th President, or the previous Attorney General, or by someone in the FBI, or elsewhere in the “intelligence” community—to conduct electronic surveillance in a building owned and occupied by the then Republican nominee for president, and currently the 45th President, Donald J. Trump.
But no application for such a warrant was ever made to a federal judge, appointed by the President and approved by the Senate.
So what is this so-called FISA court?
Let’s start with everything the Constitution of the United States has to say about the federal Judiciary and its jurisdiction:
Section 1. The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;—to all cases affecting ambassadors, other public ministers and consuls;—to all cases of admiralty and maritime jurisdiction;—to controversies to which the United States shall be a party;—to controversies between two or more states;—between a state and citizens of another state;— between citizens of different states;—between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.
In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.
Section 3. Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.
The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The judicial power of the United States shall not be construed to extend to any suit, in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws. ….
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Note the 9th and 10th amendments to the Constitution, which limit the jurisdiction of the federal government to only those powers specifically mentioned in the Constitution:
The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Now, here’s what Wikipedia tells us about FISA:
The United States Foreign Intelligence Surveillance Court (FISC, also called the FISA Court) is a U.S. federal court established and authorized under the Foreign Intelligence Surveillance Act of 1978 (FISA) to oversee requests for surveillance warrants against foreign spies inside the United States by federal law enforcement and intelligence agencies. Such requests are made most often by the National Security Agency (NSA) and the Federal Bureau of Investigation (FBI). Congress created FISA and its court as a result of the recommendations by the U.S. Senate’s Church Committee. Its powers have evolved to the point that it has been called “almost a parallel Supreme Court.”
Since 2009, the court has been relocated to the E. Barrett Prettyman United States Courthouse in Washington, D.C. For roughly thirty years of its history (prior to 2009), it was housed on the sixth floor of the Robert F. Kennedy Department of Justice Building.
In 2013, a top-secret order issued by the court, which was later leaked to the media from documents culled by Edward Snowden, required a subsidiary of Verizon to provide a daily, on-going feed of all call detail records—including those for domestic calls—to the NSA.
Main article: United States Foreign Intelligence Surveillance Court
The Act created the Foreign Intelligence Surveillance Court (FISC) and enabled it to oversee requests for surveillance warrants by federal law enforcement and intelligence agencies (primarily the Federal Bureau of Investigation and the National Security Agency) against suspected foreign intelligence agents inside the U.S. The court is located within the E. Barrett Prettyman United States Courthouse in Washington, D.C. The court is staffed by eleven judges appointed by the Chief Justice of the United States to serve seven- year terms.
So, these 11 judges are not part of the federal judiciary. They are not appointed by the President with the consent of the Senate. Their appointment by the Chief Justice of the United States may qualify them as clerks to the Chief Justice but the Chief Justice has no constitutional authority to appoint other judges, and such appointments made by the Chief Justice certainly do not meet the constitutional standard for considering or issuing warrants for anything—and certainly not in a secret kangaroo court.
We see now the “shadow” government has its own secret court and its own goons to carry out its secret orders.
The President of the United States is now learning that such powers have been targeting him and his administration in what appears like nothing other than an attempted coup d’etat by his political enemies, likely loyal to the previous president.
This is something that belongs not in our daily news but in a play by Shakespeare.
Edward Snowden went rogue to alert the American people to this danger.
President Donald Trump, who during his campaign declared Edward Snowden a traitor (he’s not; see the Constitution’s definition of treason quoted above) should reconsider his campaign statement and pardon Edward Snowden so that Snowden might return to the United States and advise President Trump as to what intelligence tools are being used by a hidden and unaccountable power structure to target whoever might attempt to bring them to justice.
© 2009, 2010, 2011, 2012, 2013, 2014, 2015, 2016 The J. Neil Schulman Living Trust. All rights reserved. Web and email links with attribution permitted and encouraged. Other reprints permitted only with prior permission of the author.
Reprinted from J. Neil Schulman @ Agorist.com
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