Addicted to power

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Kudos to the Daily Sentinel for continuing to responsibly chronicle ongoing revelations regarding the NSA’s various “surveillance” programs (“Court orders NSA to give up more secrets”, August 23, 2013; Ruth Marcus, “New court documents show NSA lied even to those overseeing the agency” & editorial “Addicted to Power”, August 25, 2013).

While the Foreign Intelligence Surveillance Act (“FISA”) courts were criticized as mere “rubber stamps” for government surveillance programs instituted after “9/11” pursuant to the USA Patriot Act – prompting demands for a more adversarial process – the fact and content of the recently released FISA court orders suggest otherwise.

Thus, even a casual reading of Judge Bates’ carefully considered and rigorously written 85-page opinion from October 2011 should afford substantial reassurance that our FISA courts take protection of Americans’ Fourth Amendment protections quite seriously.

The “downstream” e-mails at issue—in addition to and separate from e-mails obtained directly from service providers as “business records”—are collected by intercepting their bulk transmission elsewhere (heretofore, a not-too-well-kept national security “secret”).

Judge Bates impliedly explained the courts’ arguably undeserved reputation by noting (in footnote 14) that—during the Bush (not Obama) Administration (which also engaged in “warrantless wiretapping”) – NSA lawyers repeatedly misrepresented the true nature and scope of its massive e-mail capture programs to the FISA court.

Judge Bates also opined that – even if e-mails enjoy the same “reasonable expectation of privacy” as do telephone calls (see U.S. v. Warshak, 6th Cir. 2010, requiring a warrant for personalized law enforcement requests to ISPs for e-mails)—the e-mails actually sought by the NSA fell within the “foreign intelligence exception” to the warrant requirement.

However, the 56,000 “protected” e-mails “inadvertently” swept-up in NSA’s program – even though only .0075 percent of the 75 million e-mails captured during the three-year period – constituted a sufficient number of Fourth Amendment violations to require more effective pre-filtering and shorter retention of such e-mails – which the court ordered.

While it remains locally fashionable to mischaracterize any governmental action with which one disagrees as “tyranny” or “power grabbing”, the Sentinel’s Sunday editorial (“Addicted to power”) misses the mark.

Contrary to the Sentinel’s factual misstatements, the Forest Service has not “agreed to
re-examine its plan to require ski companies operating on national forest service lands to relinquish a portion of their state water rights in order to have their Forest Service permits renewed”, nor did “a federal court’s ruling . . . force the federal agency to reconsider”.

Rather, since 1983, Forest Service permits required ski areas to title water rights used for snow-making in the name of the United States.  Doing so ensures that those water rights “run with the land” and cannot be transferred for other uses – to the potential detriment of successor ski operators, local communities dependent on ski operations, graziers, and/or the national forest itself.

For the next twenty years, that policy was inconsistently enforced (but not necessarily legally “waived”), such that many Colorado ski areas obtained water rights without so titling them.  In 2004, the Bush Administration’s Forest Service began requiring joint ownership of such water rights with the U.S., while dubiously “grandfathering” previous non-compliant permits.  In 2011, President Obama’s Forest Service sought to restore consistency to the policy by requiring compliance as a condition for permit renewal.

In December 2012, the court – without addressing the substance of renewal conditions – ordered the Forest Service to withdraw its directive, pending completion of the public process required by the Administrative Procedures Act.  That process is now under way, and may well result in re-ratification of the Forest Service’s prudent 30 year-old policy.

Thus, as with NSA lies and voting rights in Texas, North Carolina, Ohio, and Florida, the “common affliction” is Republican “governance”, not government bureaucracy itself.

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