Mister Chief Justice: You have a major problem

The chief justice of the Supreme Court is ultimately responsible for protecting all Americans from the growing evil of the 21st-century surveillance state.  This is because the FISC judges are unique in American history and are the wholly owned responsibility of Chief Justice John Roberts, who alone appoints them.  To take the great Harry Truman quote when president: "the buck stops here," the sacred social contract of his stewardship in owning the FISC-appointed judges means that the buck stops with the chief justice.

This is important because, in 1978, with various amendments along the way, no one saw the tremendous power of the surveillance state's technological imperatives.  Technology is politically neutral; how it has been politically applied is the issue.


Official portrait of the chief justice of the United States.

The Foreign Intelligence Surveillance Act of 1978 was enacted into law:

Through FISA, Congress sought to provide judicial and congressional oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to effectively monitor national security threats.

FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special U.S. Federal court that holds nonpublic sessions to consider issuing search warrants under FISA.  Proceedings before the FISC are ex parte, meaning the government is the only party present.

50 U.S.C. §§ 1801-11, 1821-29, 1841-46, 1861-62, 1871.

While serving as director of technology assessment, international technology security, Office of the Secretary of Defense (2003-2009), I engaged with Vice Admiral Poindexter and also Major General Keith Alexander, later NSA general Alexander.

Admiral Poindexter, until relieved of command, was leading the DARPA, Total Information Awareness (TIA) effort, and then Major General Alexander, then C.G. of U.S. Army Intelligence and Security Command (INSCOM), and was creating his "Cities of Information."  His INSCOM effort was a clever way to present metadata into a three-dimensional dynamic iterative computer display that was plotted on an X-Y-Z axis.

Both men, patriotic to their core and brilliant, were dedicated to the best of their considerable abilities to build information systems that captured metadata and then harnessed powerful machine-based analysis to filter actionable intelligence in order to make America and our allies safer.

I personally saw the power of their vision being merged with the power of 21st-century information age technology and was hugely impressed.  With appropriate safeguards, Americans were being better protected.

Back in our Pentagon ITS office, we had a series of discussions about employing such metadata collection and analytical efforts for our counterintelligence (CI) mission.  I saw both TIA and "Cities of Information" as tremendously powerful new tools.  But, during our ITS office robust discussions, a very smart co-worker with a law degree flagged his deep concerns about proceeding down this path.

This colleague pointed out that it was way too much power to give to the government.  He was exactly right.

In those days, we trusted ourselves and our FBI CI teammates as the good guys.  However, our lawyer astutely pointed out that things can change in our democracy, so I countered: "What could possibly go wrong?"  Well, America now knows exactly what can go wrong when everything changes and parties change, but the system continues to grow.

We now have the devil's brew of the coming rollout of the most egregious violation of the Constitution in the history of our country.  Combining the power of the FISC with the unanticipated growth of 21st-century collection technology, and putting this capability in the hands of anti-constitutional zealots in positions of very senior responsibility in national intelligence organizations and the DOJ and FBI, transcends the original legislative purpose of safeguarding America.

If the enemies of President Trump had been successful in perpetrating a fraud on the court by either destroying his chances to become president or taking down his presidency, the safeguards of stopping the next terrorist attack would pale in comparison to losing our democracy. 

It is simple: if it had worked once, it could work again and again.  I am 100% against making America weaker in stopping determined killer foes, but I am also 100% against empowering domestic criminal behavior that goes to the heart of crushing our Bill of Rights safeguards.

This is why Chief Justice Roberts has a huge issue coming his way that is both legal and political.  When more and more evidence is made known, the fraud on his FISA court will be evident.

The Chief Justice should be on notice that Congress can give and Congress can take away.  The fraud on his court is not just a legal issue with remedies inside the existing legislation, but a politically volatile issue that demands full, uncompromising accountability; transparency; and court-ordered justice in partnership with Executive Branch law enforcement.  This is especially true if one of "his" judges turned a blind eye to corruption or had a known conflict of interest.

Beyond the legalities of Penalties for Document Fraud, which I am sure will soon be discussed, the political dimension must not be ignored.  U.S. Code:

(a) Activities prohibited, It is unlawful for any person or entity knowingly –

(1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this chapter or to obtain a benefit under this chapter[.]

The whole world will be watching to see if the Judicial Branch of government joins with the Executive and Legislative Branches to bring people to justice.  Congress, the people's body, can simply eliminate the entire edifice it created and, with insight gained from the bad behavior of the corrupters, build a better system of checks and balances.

I suspect that both left and right thoughtful civil libertarians would, with many robust inputs, engage together in fixing a system that has been so corrupted and totally abused.

 American democracy is a never-ending work in process.

The chief justice of the Supreme Court is ultimately responsible for protecting all Americans from the growing evil of the 21st-century surveillance state.  This is because the FISC judges are unique in American history and are the wholly owned responsibility of Chief Justice John Roberts, who alone appoints them.  To take the great Harry Truman quote when president: "the buck stops here," the sacred social contract of his stewardship in owning the FISC-appointed judges means that the buck stops with the chief justice.

This is important because, in 1978, with various amendments along the way, no one saw the tremendous power of the surveillance state's technological imperatives.  Technology is politically neutral; how it has been politically applied is the issue.


Official portrait of the chief justice of the United States.

The Foreign Intelligence Surveillance Act of 1978 was enacted into law:

Through FISA, Congress sought to provide judicial and congressional oversight of foreign intelligence surveillance activities while maintaining the secrecy necessary to effectively monitor national security threats.

FISA also established the United States Foreign Intelligence Surveillance Court (FISC), a special U.S. Federal court that holds nonpublic sessions to consider issuing search warrants under FISA.  Proceedings before the FISC are ex parte, meaning the government is the only party present.

50 U.S.C. §§ 1801-11, 1821-29, 1841-46, 1861-62, 1871.

While serving as director of technology assessment, international technology security, Office of the Secretary of Defense (2003-2009), I engaged with Vice Admiral Poindexter and also Major General Keith Alexander, later NSA general Alexander.

Admiral Poindexter, until relieved of command, was leading the DARPA, Total Information Awareness (TIA) effort, and then Major General Alexander, then C.G. of U.S. Army Intelligence and Security Command (INSCOM), and was creating his "Cities of Information."  His INSCOM effort was a clever way to present metadata into a three-dimensional dynamic iterative computer display that was plotted on an X-Y-Z axis.

Both men, patriotic to their core and brilliant, were dedicated to the best of their considerable abilities to build information systems that captured metadata and then harnessed powerful machine-based analysis to filter actionable intelligence in order to make America and our allies safer.

I personally saw the power of their vision being merged with the power of 21st-century information age technology and was hugely impressed.  With appropriate safeguards, Americans were being better protected.

Back in our Pentagon ITS office, we had a series of discussions about employing such metadata collection and analytical efforts for our counterintelligence (CI) mission.  I saw both TIA and "Cities of Information" as tremendously powerful new tools.  But, during our ITS office robust discussions, a very smart co-worker with a law degree flagged his deep concerns about proceeding down this path.

This colleague pointed out that it was way too much power to give to the government.  He was exactly right.

In those days, we trusted ourselves and our FBI CI teammates as the good guys.  However, our lawyer astutely pointed out that things can change in our democracy, so I countered: "What could possibly go wrong?"  Well, America now knows exactly what can go wrong when everything changes and parties change, but the system continues to grow.

We now have the devil's brew of the coming rollout of the most egregious violation of the Constitution in the history of our country.  Combining the power of the FISC with the unanticipated growth of 21st-century collection technology, and putting this capability in the hands of anti-constitutional zealots in positions of very senior responsibility in national intelligence organizations and the DOJ and FBI, transcends the original legislative purpose of safeguarding America.

If the enemies of President Trump had been successful in perpetrating a fraud on the court by either destroying his chances to become president or taking down his presidency, the safeguards of stopping the next terrorist attack would pale in comparison to losing our democracy. 

It is simple: if it had worked once, it could work again and again.  I am 100% against making America weaker in stopping determined killer foes, but I am also 100% against empowering domestic criminal behavior that goes to the heart of crushing our Bill of Rights safeguards.

This is why Chief Justice Roberts has a huge issue coming his way that is both legal and political.  When more and more evidence is made known, the fraud on his FISA court will be evident.

The Chief Justice should be on notice that Congress can give and Congress can take away.  The fraud on his court is not just a legal issue with remedies inside the existing legislation, but a politically volatile issue that demands full, uncompromising accountability; transparency; and court-ordered justice in partnership with Executive Branch law enforcement.  This is especially true if one of "his" judges turned a blind eye to corruption or had a known conflict of interest.

Beyond the legalities of Penalties for Document Fraud, which I am sure will soon be discussed, the political dimension must not be ignored.  U.S. Code:

(a) Activities prohibited, It is unlawful for any person or entity knowingly –

(1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying a requirement of this chapter or to obtain a benefit under this chapter[.]

The whole world will be watching to see if the Judicial Branch of government joins with the Executive and Legislative Branches to bring people to justice.  Congress, the people's body, can simply eliminate the entire edifice it created and, with insight gained from the bad behavior of the corrupters, build a better system of checks and balances.

I suspect that both left and right thoughtful civil libertarians would, with many robust inputs, engage together in fixing a system that has been so corrupted and totally abused.

 American democracy is a never-ending work in process.