George Phillies is a longtime Libertarian Party activist who was a several time candidate for various party offices.
Impeach the FISC Twelve
The eleven members of the Foreign Intelligence Surveillance Court and the Chief Justice who appoints them should be impeached by the House, tried and convicted by the Senate, and removed from office. The FISC Twelve are:
Rosemary M. Collyer
Raymond J. Dearie
Martin L.C. Feldman
Mary A. McLaughlin
Michael W. Mosman
F. Dennis Saylor IV
Susan Webber Wright
Chief Justice Roberts, who appointed them.
I begin with our Constitution, Article II Section 4, which provides “The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” “Misdemeanor” is a traditional term of art; it refers to abuses of office whether specificaly criminal or not.
Historically, impeachments have usually involved criminal acts such as bribery. However, in 1862 West Humphreys was impeached and removed from office for waging war against the United States.
And now we come to the FISC 12. They should be sent on their way.
What are the charges?
One. Abuse of office, issuing writs of assistance and general search warrants as denounced by the founding fathers of our republic. I quote the Virginia Declaration of Rights:
“That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted”
But that’s what a FISC search warrant is, a general warrant. There can be no doubt. Issuing a general warrant is a gross abuse of power. For such an abuse, the cure is impeachment.
Two. Perjury, failing to adhere to their oaths of office to protect and defend the Constitution. General searches are completely forbidden by our Fourth Amendment, which provides ” no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”. Precedents go back to the case of colonial-period case of John Entick (1765), who had all of his papers (not just the criminal ones) seized, with no probable cause. The search and seizure were voided under law existing even before our Constitution was penned. The FISC warrant targets every single person using a major telecomm firm. There’s no possibility of probable cause. The FISC warrants are anything but legitimate warrants, because there is no particularity in the description of what is to be seized.
The proceedings of the FISC court are Star Chamber proceedings, kept secret not only from the people but from the attorneys of those being searched. Against secret hearings there is no possibility of defense. Again, we have here perjury, failure to adhere to the oath of office.
We now in addition have the interesting result that the NSA leaks evidence of alleged crimes to other law enforcement agencies such as the DEA. These other agencies then manufacture a fraudulent evidentiary trail, hiding the fact that the actual evidence for the crime was tainted. That’s a massive violation of or Constitution and Bill of Rights. By failing to prevent these violations, or to speak out against them, the FISC Twelve failed to protect and defend our Constitution.
Three. Levying war on the United States. Oh, yes, electronic warfare is warfare. That’s why the Department of Defense spends so much money on it. What is being done is a classic part of electronic warfare, sweeping up every scrap of our electronic communications, exactly as the Allies did against the fascists during World War 2. Thanks to various nefarious international agreements, it is the same allies doing the sweeping, but this time the target is not the German war machine but the American people. That’s electronic warfare, and we the American people are the targets. The effect of the war is deny journalists their sources and frighten some Americans into silence.
The FISC Courts have destroyed one of our fundamental rights, a right so fundamental that it did not need to be spelled out, the Right of Privacy. To return two and a half centuries ago to the case of John Entick, the court held “Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave.” That’s the Constitutional Right the FISC proceedings have trampled underfoot. My email is my property, and it is being set foot upon. Readers may wish to recall that privacy is the same right that gives women access to abortions and (recall Griswold) married couples access to contraceptives.
Finally, there are those who will defend the FISC 12 by claiming that the FISC 12 are simply obeying the law.
First, no law passed by Congress can override our Constitution. By authorizing writs of assistance and general search warrants, Congress has not merely violated our Constitution, it has smashed the Constitution to pieces. The Law of the Land, our Constitution, is being violated.
Second, we have a clear legal precedent. I refer to the third of the Nuremberg Trials, the Judges’ Trial. Sixteen German judges and lawyers were tried on four major charges. The judges had the defense that they were obeying German law; furthermore, unlike the United States, there was no higher German law above the acts of the German Parliament. Most of the Germans were convicted. The FISC 12 have no such defense. American does have a higher law, our Constitution, and they broke it.