FISA was an attempt to legalize the illegal and pretend to be controlling it, the court was always part of it.
Judge Swamp is forced to take the right side of this issue:
Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 in response to the unlawful surveillance of Americans by the
FBI and the CIA during the Watergate era. President Richard Nixon -- who famously quipped after leaving office that "when the president does it, that means that it is not illegal" -- used the FBI and the CIA to spy on his political opponents.
The stated reason was national security. Nixon
claimed that foreign agents physically present in the U.S. agitated and aggravated his political opponents to produce the great public unrest in America in the late 1960s and early 1970s, and thus diminished Americans' appetite for fighting the Vietnam War.
This view -- there are foreigners among us who wish us harm -- came to fruition during the presidency of Jimmy Carter, who pushed for the enactment of FISA. FISA's stated purpose was to limit -- not expand -- the government's surveillance powers by requiring the intervention and permission of a judge.
Wait a minute. Government surveillance is a search under the Fourth Amendment, and government searches already required warrants from judges. So, what was new about FISA?
The Constitution requires probable cause of crime to be demonstrated to a judge before the judge can sign a search warrant. That was the law of the land until FISA came along. FISA set up the Foreign Intelligence Surveillance Court, and it authorized the judges on that court to issue search warrants based on a lower standard of probable cause.
Isn't that contrary to the Constitution? Yes, it is. But a challenge has never reached a non-FISC federal court because the government has never used evidence that it admits was obtained from a FISC warrant in a criminal case for fear that a federal court will invalidate the FISA standard.
It gets worse.
Because FISC meets in secret, and because only government lawyers appear before it, we have a dangerous recipe: Secrecy and no defense counsel produce tyranny. That combination has the standard for issuing search warrants sliding even further down the slope of tyranny and absurdity.
FISA established probable cause of foreign agency as the standard that government lawyers must meet. That morphed into probable cause of foreign personhood. That morphed into probable cause of speaking to a foreign person. And that morphed into probable cause of speaking to any person who has ever spoken to a foreign person. All of this happened in secret.
This slow but persistent destruction of the right to be left alone, which is ostensibly guaranteed by the Fourth Amendment, came about not only by secrecy and the absence of adversaries but also by judicial gullibility and constitutional infidelity.
Judges have a tendency to accept uncritically the unchallenged applications presented to them. This is an inherent defect for FISC judges, whose decisions slowly and materially weakened the already unconstitutional FISA probable cause standard. FISC judges have granted 99.97 percent of all applications for search warrants.
More at:
https://www.foxnews.com/opinion/judg...rong-with-fisa
The court IS FISA and if Nunes wants to get rid of it he wants to get rid of FISA and take us closer to the founders' intent.
Originally Posted by susano
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