Mister Chief Justice You Have a Major Problem

By Edward Timperlake

One of the most venerated positions in America is the Chief Justice of the Supreme Court and that is how it should be.

After all this is America with a vibrant 1stAmendment and many many can challenge legal opinions but respect for the Chief Justice position is firmly embedded in our great Constitutional tradition.

The left wing absolute crazies had their “opening night on Broadway” to try and influence the November Elections, and they all made total fools of themselves at the Judge Kavanaugh hearings.

All they accomplished was putting the spot light on a truly brilliant legal scholar who will proudly join with the best legal minds on the Court.

The “Supremes,” as I often head colloquially referred to when I served as a Professional Staff member (1996-1999) on the House Committee on Rules, known as “The Speakers Committee,” were honestly venerated by both sides of Capital Hill and both sides of the aisle.

The real debate about Supreme Court effectiveness was the providence of individuals with law degrees. That type of  legal process mind thrives in discussing Supreme Court Rulings, Judicial procedures and necessary legislation.  That legal mind-set was essentially how 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.

And here is where this article departs from “legalize” and reverts back to the social contract embedded in the original legislated Congressional intent.

The Chief Justice is ultimately involved in protecting all Americans from the growing evil of 21stCentury “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.

Why is this important?

In 1978, with various amendments along the way, no one saw the tremendous power of the “surveillance state” technological imperative.

Technology is politically neutral it is how it has been politically applied is the issue.

While serving as Director 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 CG of US Army Intelligence and Security Command (INSCOM) and was creating his “Cities of Information.”  His INSCOM effort was a very 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 21stCentury information age technology and was hugely impressed.

With appropriate safe guards American 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, because in those days we trusted ourselves and our FBI CI teammates as the good guys.

However, our lawyer, astutely pointed out 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, parties change but the system continues to grow.


We now have the devils brew of the coming roll out the most egregious violation of the Constitution in the history of our country.

Combining the power of FISC with the unanticipated growth of 21stCentury collection technology in the hands of anti-constitutional zealots in positions of very senior responsibility in National Intelligence organizations and DOJ/FBI transcends the original legislative purpose of safeguarding America.

If the enemies of President Trump had been successful in perpetuating a fraud on the Court by destroying either his chances to become President or take 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% not 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 court will be evident and I will leave that to the great, or not so great, legal debates to come.

However, the Chief Justice should be on notice that Congress can givith and Congress can take away.

The fraud on his court is not just a legal issues with remedies inside the existing legislation but a very politically volatile issue that demands full uncompromising accountability, transparency and Court ordered justice in partnership with Executive Department law enforcement.

And this is especially true if one of “his” judges turned a blind eye to corruption or had a known conflict of interest than that Judge must go.

Beyond the “legalize” of Penalties for Document Fraud, which I am sure will soon be discussed, the political dimension must not be ignored:

(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 if the Judicial Branch of Government joins with the Executive and Legislative branch to bring people to justice.

If not Congress, the people’s body can simply eliminate the entire edifice they created and with insight gained from the bad behavior of the corrupters build a better system of checks and balances.

I suspect 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.