Americans tend to think of things in a rather linear straightforward manner. As an example, a court is a court, right?
The funny thing is, the United States government knows the public thinks in a very linear straightforward manner and it uses that against the very people it exists to serve – the American people.
So…when we say, “a court is a court”, we’re correct, right? Sorry. No.
United States statutes that create and detail the existence of the “Courts of the United States” are found in Title 28 of the United States Code, entitled “Judiciary and Judicial Procedures”. Pretty clear.
Let’s keep the discussion simple.
“Real” federal judges are appointed for life and can only be removed by impeachment for violation of the “good behavior” provision. (See 28 USC, section 134) In a “real” federal court an opposing party can file an action and compel you to appear before the court via subpoena power. It is an adversarial setting in which there is a Plaintiff and Defendant.
Let’s look at Bankruptcy courts and see if the same holds true.
Bankruptcy judges are appointed for a term of 14 years. (See 28 USC, section 152) Well then, since “real” federal judges are appointed for life, these judges cannot be “real” federal judges, can they?
A bankruptcy judge may exercise only the authority contained within Chapter 6 of Title 28. “Real” judges – those appointed for life – can serve in any capacity contained in Title 28, not merely Chapter 6.
No one can file an action with a bankruptcy court and make you declare bankruptcy. In other words, no one can haul you before the court and make you enter into bankruptcy.
There is no Plaintiff or Defendant in bankruptcy court, as there is a “real” court. When you want to declare bankruptcy you file a “Petition” and you are known as “the Petitioner”.
While it is true that the U.S. Constitution gives the federal government authority over bankruptcies in the U.S., that doesn’t mean Congress chose to exercise that constitutional authority via a “real” court. As you can see from the facts above, it didn’t.
Another court that is not a real court is the U.S. Tax Court.
Most taxpayers believe that if they have a disagreement with the IRS, and go to Tax Court, they’ve had their “day in court.” Perhaps they have, but not their day in a real court!
What we call today “Tax Court” is really nothing more than the “U.S. Board of Tax Appeals” established by Congress in 1924. The Board was established as an “independent agency in the executive branch of the government.” Note “…in the executive branch…”, not “in the Judicial Branch”.
In 1942 Congress changed the name of the “Board” to “The Tax Court of the United States”. When they did that, they built raised “benches” to make people think it was a court, the Board members were re-titled as “judges”, and they started wearing black dresses and everyone called them “Your Honor.”
From 1942 until 1969 the statute creating the “court” stated the U.S. Board of Tax Appeals “shall continue as” The Tax Court of the United States. Pretty clear.
But then in late 1969 Congress changed the name again. This time to “Tax Court of the United States”.
Along with the name change came a change in status. The “court” was removed from the Executive Branch and became an Article I “legislative court”. Please note again that “real” courts are established in the U.S. Constitution under Article III. Article I exclusively addresses Congress, not the courts.
In fact, in this instance Congress actually came right out and said it! 26 USC 7441; “There is hereby established, under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court.”
And like bankruptcy judges, Tax Court judges are not appointed for life, as are “real” judges. Tax Court judges are appointed for a term of 15 years. (See 26 USC 7443.)
And like bankruptcy court, no one can make an alleged taxpayer go to Tax Court. A taxpayer must voluntarily seek to go to Tax Court by filing a written request to do so, known as a Petition. Again, there is no Plaintiff or Defendant (as there is in a real court), only a Petitioner.
And lastly, we come to what most Americans know as the “FISA Court”! FISA stands for “Foreign Intelligent Surveillance Act”; an Act passed into law in 1978. Part of FISA created something we today call the “FISA Court”.
You will recall that the previous not-real courts where enacted into law in Titles other than Title 28 (The Judiciary), which creates all real courts of the Unites States. And so it is with the FISA Court.
Few Americans understand that the National Security Agency, which applies for “warrants” with the FISA Court most frequently, is a military organization that hires a lot of civilian employees. (NSA’s original name was the “Armed Forces Security Agency”, before being changed to National Security Agency in 1951.)
FISA is military legislation enacted under Congress’ war-making authority and the authority of the President as Commander-In-Chief of the Armed Forces. FISA, and the “court” it created are within Title 50 of the United States Code, entitled “War and National Defense”. You will note (yet again) that the FISA “court” is not established in Title 28, The Judiciary.
The standard for an Executive Brach agency to obtain a warrant is low. Very low. It is so low in fact that from 1979 to 2012 the government requested 33,900 warrants and was denied just 11. That’s a success rate of 99.97%! Or phrased another way, the government was denied only .03% of the time. And why not! It is essentially a “national security tribunal” (which you will find nowhere in U.S. law) masquerading as a court!
Judges of the FISA court are appointed by the Chief Justice of the U.S. Supreme Court. There is no public vetting. No public debate. No Senate confirmation. The Chief Justice picks a judge and that’s that. When the government seeks a warrant, it only appears before one of the FISA judges. If that judge denies the request [As if! LOL] the government can appeal to a FISA Court of Review. The FISA court hands out warrants like candy, so the first time the government appealed to the Review Court was 24 years after the Court was created!
Because the judges are appointed by the Chief Justice, and that position has been held by a Republican since 1986, nearly all FISA judges are Republicans. Additionally, it is presumed that every FISA judge is appointed based on his willingness to cooperate with the Executive in its requests. And, whether one be a Republican or not, it is generally considered that Republicans are far more focused on perceived threats, and less focused on protecting the privacy of American citizens, than are Democrats. (Not painting Dems as better than GOP. At the national level they’re all self-serving assholes.)
Criticism of the “Court” has come from both ends of the spectrum; the Cato Institute on one end, and Democratic Senator Ron Wyden on the other, and many others across the spectrum.
Former National Security Agency analyst, Russ Tice. called it a “kangaroo court with a rubber stamp”. In 2005 the New York Times ran a story detailing how then President George W Bush was doing an end run around the Court in order to conduct illegal surveillance without the Court’s knowledge. Several days later Judge James Robertson resigned from the Court as an act of protest against the illegal surveillance.
Leaving aside the question of whether the FISA Court is operating in a manner conducive to a government of and by The People, the bottom line is that as a “court” the FISA Court is joke. The FISA Court is a place the Executive Branch intel apparatus goes to get its desires rubber-stamped by hand picked sycophants.
The purpose of Dave Champion’s Liberty is do everything possible to ensure you have all the facts to make the best decision you can about matters of liberty in our nation. Knowing which courts are real and which courts are…something else…is part of the knowledge to assist you in making those good liberty-based decisions!
Copyright Dave Champion 2015