Rand Paul vs The Secret Court

Rand Paul vs The Secret Court

Bringing a lawsuit against the NSA is a tricky deal. They may be spying and collecting data on everyone. It’s practically common knowledge, but when you have to prove it in a court of law, they’re not exactly going to say “YES, WE’RE SUPER-SPIES” and hand you a cupcake for your efforts. So if you’re wondering what the hold up is on Sen. Paul’s class action suit, it’s because he and his team are exploring the situation from different angles, one of which is legislation dealing with the “secret court”, in other words, the FISA court (or the Foreign Intelligence Surveillance Court.)

“We’re still exploring the legal aspect of whether we can file a class action suit,” Paul told Wolf Blizter last Wednesday. “When you hear of class action suits, you hear of them mostly on liability. This would be a class action suit on a constitutional question, and it might be the first of its kind if we can file it.”

“The problem is the court sometimes say you have no standing, and the NSA will say, hey, prove we were spying on you, but we won’t give you any information whether we were or weren’t. So we’re exploring it from all different ways.”

“I’m also exploring legislation that would give people an easier time standing in court and then if the phone company gets an order from a secret court, the FISA court, that they could appeal this into a public court or the Supreme Court.”

Secret court, secret law, what is this a party in the middle of the night with hooded figures and archaic chants? It sounds silly until one realizes the significance of what Paul intends to do. Reforming the FISA Court is going to be a crucial element for NSA reform. After all, this court is suppose to oversee the NSA…even if it did dramatically fail to keep the NSA in check, if it even tried. This is the court that’s been described as a “parallel Supreme Court.” On top of that, there are those who allude that it’s been “creating a secret new body of law governing privacy, secrecy and surveillance.”

“The problems with the court as oversight institution run very deep—reaching to the very heart of what ‘a court’ is,” writes Jay Stanley on ACLU, “and …sweeping changes are needed if the NSA is to receive anything close to the degree of oversight it needs.”

According to ‘one report‘, phone companies were given the ‘legal option’ of challenging orders from the secret court. They just never pursued it. Right. When companies can’t even “disclose requests made under the FISA,” I very much doubt the FISC gave them much choice in the matter to begin with.

David Kravets from The Wired noted that “any challenge to the surveillance program would have been done before the court in secret, and it’s unlikely one would have been successful.”

I wouldn’t feel optimistic either if I was called out to a secret court that I couldn’t tell anyone about.

Such is the secretive nature of the FISA court that Eric Lichtblau of the New York Times felt that it wasn’t even “clear in all circumstances whether Internet and phone companies…have the right to appear before the FISA court.”

That’s why it’s so important that Paul is trying to bring more transparency to the FISA court by opening its decisions to public courts. The 46 NSA recommendations currently under review by Obama includes a privacy advocate on the list as a check to the FISC, but is it enough? Will it even be enacted upon? There’s a precarious balance between defending our national security and our freedom as citizens, but it’s hard to feel secure or even like an American when a secret court gives its blessing to consider every one of us a potential terrorist.

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