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Does the US Have A Machiavellian Surveillance System?

Do we have a surveillance system which permits the government to wire-tap any law-abiding American who criticizes the wrong federal government person, policy or snafu, even though that wiretap or surveillance violates his or her "Constitutional right to freedom of speech"? Or any American journalist, in violation of "freedom of the press"? Yes, under the FISA-Patriot Acts, any time a designated government official, such as the President (or his designee) OR Attorney-General(or his Assistant) alleges, in effect, that such person is saying or writing things that are harmful or detrimental to the government.

But is it Constitutional to do that? Probably not, but, under the new, secret court system created by the FISA-Patriot Act, the Article 3 Federal Court system, which formerly decided all questions relating to the constitutionality of requests for search and seizure orders, no longer do so. The review of all such requests has now been switched over to the secret FISA-PATRIOT ACT Court, and the SECRET FISA Appeals Court. (5.)

Under the FISA-Patriot Act, the Federal District Courts, and the Constitution, are NOW by-passed. As a result, the U. S. Supreme Court has still not passed on the Constitutionality of this law, even though it was initially enacted 39 years ago. As stated in the Federalist Papers, number 78, “the Constitution should be preferred over the statute, the intention of the people to the intention of their agents… ... The courts have the right to declare legislative acts void because they are contrary to the Constitution” (Webster, 1999, Modern language version). In this context, this new FISA secret court system is revolutionary, unconstitutional, and should be changed soon! (1.)

This situation has been created by Congress, by enacting the FISA-Patriot Acts piecemeal over a number of years, undoubtedly with the belief that they were entitled to do so under the Constitution itself, Article I-8-9, which ALLOWS Congress to create new courts in certain circumstances.

As a result, Congress has created a new court system which is separate from our existing Federal Court system, and yet equal to it in the field of surveillance on American citizens, press, and journalists. This goes beyond anything ever done before in this country, and is a dangerous precedent for the future of democracy, in my humble legal opinion.*

Because this new FISA secret quasi-court undertakes to subvert and subordinate the Constitution itself, by handing down secret legal decisions, which are never reviewed for constitutionality by our regular Article III court system (5), it needs to be amended to restrict it to its original purpose of investigating foreign terrorists. It should also expressly be prohibited from being used against ordinary American citizens, or against the working American press, or in ordinary, routine state criminal investigations/ proceedings as well, as is now being done. ( 2.)

This disparate FISA-Patriot Act permits Congress, through its secret court system, to effectively amend our Constitution, by disabling not only the 4th, 5th, and 6th Amendments protecting Americans from malicious surveillance by the Federal government, but also to disable the Supremacy Clause of the Constitution, and thereby the Constitution itself. The Supremacy Clause, Article VI, subd. 2, states that “The Constitution…shall be the supreme law of the Land,….anything in the Constitution….. to the contrary notwithstanding.” In other words, the power of Congress to create new courts in limited circumstances, if interpreted as inconsistent with the power of Article III courts to review acts of Congress, is pre-empted by the Supremacy Clause of our Federal Constitution. The Supremacy Clause does not permit Congress to make exceptions to it. See Federalist Papers, Article 78.

The broad sweep of these changes has set a dangerous precedent for our democracy and create a need for its amendment now, to restrict FISA to its original purpose of solely investigating foreign terrorists. (3.)

But are there are specific Constitutional defects in the FISA-Patriot Act, which would justify correcting and amending that Statute now? Yes.

In the first place, the Constitution, under Article I-8 , only gives Congress the right to create new courts which are "inferior" or subordinate to the Supreme Court itself . But this FISA ACT RENDERS SECRET legal DECISIONS which cannot be even appealed into the Federal Court system, or reviewed by the U.S. Supreme Court. By dint of this statutory scheme, FISA is not” inferior” to the Constitution, but is in fact both separate from, and equal to, the US Supreme Court in issuance of Surveillance orders. Since FISA is not subordinate to the Constitution, that renders it, in itself unconstitutional. But in addition, the FISA law also violates the Supremacy Clause of Article VI of the Constitution insofar as that Clause states that the Constitution must rule supreme in this country over all courts and Congress. And it further violates the Constitution’s Due Process Clause by failing to provide notice to the defendant or target at any point of the fact or existence of the federal wiretap or surveillance. (4.)

If Congress creates a secret court system that eliminates and forecloses judicial review by our Federal Courts of its Secret Court surveillance decisions (5), as well the Statute which creates it, then that statute is unconstitutional.

Otherwise, the historic decision by Chief Justice John Marshall in Marbury v. Madison, which established the right of our Federal Courts to review the constitutionality of all laws passed by Congress, is itself also a dead letter.

The lack of any direct line of appeal for the “target’ of the surveillance from any FISA-Patriot Act decision into the Federal Circuit Court of Appeals----thus cloaking the politicization of surveillance decisions—most certainly renders the FISA-Patriot Act unconstitutional on its face, under Article VI.

This FISA statute is also Machiavellian in that it goes to great lengths to hide in complicated legal language and inscrutable procedural rules the manner in which it allows the executive department of the Federal government, without any Constitutional checks or balances whatsoever, to implement and control the issuance of all surveillance and wiretap orders in this country.

The effect of this is to eliminate all constitutional protections given by the Constitution and the Founders to our citizens to protect ourselves against not only unforeseen legal charges, but also against arbitrary and destructive Federal surveillance techniques in situations where there was no justified suspicion of ever violating the law in the first place.

George A. Mathewson, Esq. (Retired)

Lake George, N.Y.

See his website for his books, opinions etc.—

*--Fifty year member of New York State and Onondaga County Bar Associations, including 40 years active practice, with the Federal Trade Commission(2 years), private practice(38 years), and just under 1 year as Regional Attorney for the NYS Dept. of Environmental Conservation, including approximately 25 years of civil and criminal litigation experience, often dealing with either Federal or state administrative law or Constitutional Issues, consisting of over 40 cases tried, in their entirety and to conclusion. AB Amherst College, Cum Laude; LLB, Cornell Law School; Master of Laws(LLM), University of Michigan Law School.

1. For other similarly untoward practices of the U.S. government, see Lofgren, “The Deep State”, 2016, Penguin Books, p. 31, “President Obama can liquidate American citizens without due process, detain prisoners indefinitely without charge, conduct ‘dragnet’ surveillance on the American people without judicial warrant, and engage in unprecedented ………witch-hunts against federal employees through the so-called Insider Threat Program .” 2. Ibid, see Lofgren, p. 5. These “are symptoms of a shadow government ruling the United States that pays little heed to the plain words of the Constitution.”

3. Ibid, Lofgren, p.34. “Certain key areas of judiciary belong to the Deep State , like the Foreign Intelligence Surveillance Court…..whose actions are mysterious even to most members of Congress.”

4. Berger v. State of New York, 87 S. Ct. 1873 at 1880(1967); 1967 WL p7 of 3

5. Although the original FISA statute includes a pro forma provision allowing the government to request a writ of Certiorari to the U.S. Supreme Court, in the rare case where the government loses in both FISA Courts, such provision(1803-b) fails to offer any similar right to the losing, “target”, against whom the wiretap or surveillance has been requested. Such aggrieved person is never even given notice of the FISA proceeding or of the decision of the FISA Court in the first instance, and therefore is denied any opportunity to contest or appeal that decision. Such one-sided justice doesn’t satisfy the requirements of the 4th , 5th, and 6th Amendments, nor the basic concepts of due process of law.

The other problem with the one-sided appeal right given to the government is that it authorizes an appeal directly to the Supreme Court, rather than to the U. S. Circuit Court of Appeals, as is the case with other specialized Executive department agency decisions, such as the Federal Trade Commission and U.S. Tax Court, whose decisions must be appealed to a Federal District Court. Arguably, Congress has exceeded its power to regulate appeals when it created a secret ex parte, quasi-court system which publishes no public records of its decisions, to be available to the general public, or even to all the members of Congress, which must over-see its actions. In effect, Congress has created a court system which not only fails to meet any of the requirements of the 4th,5th, and 6th Amendments for Constitutionality, but in addition can issue orders on surveillance on grounds which are arguably not limited by or grounded on the Constitution.(i.e. secret FISC orders of July, 2004 approving inter-net collection of meta-data; secret FISC order of May, 2006 approving collection of telephone meta-data; secret FISC order compelling Verizon to provide all information on millions of American domestic and international calls for specified period; FISC opinions reviewing and approving NSA bulk data collection programs), and then provided a one-sided appeal directly to the Supreme Court.

Since virtually all of the above has subsequently been approved several times by Congress, the issue now is whether Congress can authorize the creation of an secret court system which renders secret decisions which may not be based on the Constitution, and which may intrude upon, or conflict with the decisions of, and be unknown to, the Supreme Court itself,( and may create ripples of public opinion which even question the need for our Constitution) without violating the Supremacy Clause of Article 6, subd. 2 of our Constitution?

My point is that it is hopefully time for the U. S. Supreme Court to review and decide all these issues in their entirety. I would further note that the last court in the history of the English common law to attempt such secret proceedings was the Star Chamber Court of England, which the Tudor and Stuart Kings used in the 16th and 17th to attack their troublesome nobles, and furthermore to put the “puritans” in prison, causing them to move first to the Netherlands and then to America.

The Star Chamber was finally abolished by Act of Parliament in 1641, pursuant to the HABEAS CORPUS Act. The English common Law was later constitutionally adopted by the U.S., and, as such, became part of our own law. And American hostility to the actions of the Star Chamber, and to similar actions by their British Masters in colonial America, is generally considered by historians to be the genesis of our 5th Amendment protections against self-incrimination, as well as a precipitating factor of the American Revolution.