WASHINGTON, October 4 -
Mr. Speaker, government secrecy is anathema to all people, and darkness by rulers can be trumped by the sunshine of a public and an independent judicial system. But, Mr. Speaker, secrecy by a judicial system is a threat to liberty of all free peoples.
In our country we have the Constitution; and, specifically, the amendments to the constitution protect us as free people against government – government intrusion and government violation of our privacy – because government has no rights. It has power. It has what we give it when we give up our liberty and our rights.
The amendments promote openness of government and protect individuals from government. There is the Sixth Amendment that talks about a public, speedy trial, where witnesses come forward and people are put on notice of the crime. Citizens are given a jury trial. But the most important part of that amendment is the right to a public trial.
The Seventh Amendment deals with jury trials in civil cases.
Of course, the Fifth Amendment talks about the fact that, in a trial, a person accused doesn’t have to testify or produce any evidence against themselves.
And then the Fourth Amendment talks about how government is limited on how it can intrude into our homes and our papers. It limits government surveillance. And it’s an inherent right that the government search be reasonable and based on probable cause, and that there must be a warrant drafted under oath describing the place to be searched, the persons and objects to be seized.
Now, this just didn’t come out of our ancestors’ minds because they thought it was a good idea. There are historical reasons for this. Maybe in our government public school system we ought to teach more about the history of liberty and why we do things the way we do under the Constitution. It goes all the way back to the 1500s in England when England invented this concept of Star Chamber.
The idea was, well, we’re going to be able to prosecute and go after nobles, certain people who are being able to get away with violations of the law. But the courts were made specifically to be secret courts where there were no witnesses, there was no indictment, and a person was forced to testify against themselves.
So, obviously, it was abused. It was abused by the Kings of England, primarily Henry VIII, when he went after and fought his opponents by prosecuting them in those secret courts.
The United States doesn’t have the Star Chamber, but we have the NSA – the National Spy Agency, as I call it –and the FISA courts, the 21st century descendants of the Star Chamber. The NSA and the Foreign Intelligence Surveillance Act allows those courts under FISA to authorize searches of anyone. Those searches are not based on probable cause, and those areas are not specifically described to be searched. It is a general warrant concept that they used in England to search people in England that were political opponents of the government and of the King.
The spy courts in the United States started under the theory that we need to be safe from terrorists. But the NSA and the spy courts violate the Constitution in the name of security. Warrants under FISA are general warrants where NSA can seize phone records , NSA can seize credit card bills and utility bills. And we are learning now that they seize not only phone data but that NSA seizes bank records.
Also, the judges are far from being independent.
They meet in secret – just like the Star Chamber did. They can’t even keep the records of the proceeding. Those are turned back over to the government. There are no witnesses present – just like in the Star Chamber. There’s no lawyers present for anybody – just like in the Star Chamber.
These FISA courts should be protecting American citizens and should be following the Constitution. They are supposed to act as the independent power between government and the people. But they’re not doing that.
I call them the “Spy, Search and Seizure Courts” because they are operating in the darkness of tyranny. We don’t know what they’re doing. They allow the NSA to seize and violate the privacy of Americans in violation of the Constitution by seizing people’s records under general warrants.
A general warrant is the idea that government knows there’s a bad guy in the area, so the government wants to search the whole area of town for the bad guy. You can’t do that. I used to be a judge. Government has to have probable cause. It has to give the addresses of the house, the specific area, state the probable cause. The warrant has got to be sworn to and be specific about the location and what government wants to search and what government wants to seize or it’s a violation of the Constitution.
The spy courts – the NSA courts and the Star Chamber courts – need to be revisited. It’s time to shine sunshine on the FISA courts and the spying of the NSA. The NSA and the FISA courts – the Star Chamber courts – have shut down the Constitution. Now it’s time to shut down the unlawful surveillance and intelligence gathering by these courts on American citizens.
And that’s just the way it is.