Jonathan Turley publishes some quite good stuff at his blog. There were two excellent pieces yesterday and one today, thus far.
It’s a grand old Constitution. Is it time for a wake?
Today’s article at Jonathan Turley’s blog was authored by Mike Spindell. Titled Catch 22 and the Secrecy Debate, it is based in part on this quote from Joseph Heller’s Catch 22. There, Mr. Heller wrote
The “Catch-22″ is that “anyone who wants to get out of combat duty isn’t really crazy” Hence, pilots who request a mental fitness evaluation are sane, and therefore must fly in combat. At the same time, if an evaluation is not requested by the pilot, he will never receive one and thus can never be found insane, meaning he must also fly in combat. Therefore, Catch-22 ensures that no pilot can ever be grounded for being insane even if he is. http://en.wikipedia.org/wiki/Catch-22_%28logic%29
Mr. Spindell argues, persuasively I think, that despite President Obama’s alleged desire to hold a “national discussion” about our current security issues, and the government snooping they involve, those discussions cannot realistically be held because all of the pertinent information is classified as secret or higher; disclose something about which to have the discussion and off you go to jail with a damaged reputation; maybe worse.
That’s part of our problem. However, we have another Catch 22 problem. Many consider the current snooping under the banner of the National Security Agency, and its child the Foreign Intelligence Surveillance Court (FISC), to be unconstitutional. I agree, for the reasons offered below. Unfortunately, there appears to be no effective way to get a determination by the Supreme Court or any other Article III Federal court.
The FISC is not an Article III court
Foreign Intelligence Surveillance Courts (FISC) were established by the Foreign Intelligence Surveillance Act of 1978 (FISA) as subsequently amended. They are intended to authorize surveillance of the types now under discussion, although it is at least questionable whether there is surveillance of only “foreign intelligence.”
FISC judges are chosen from the various Federal District Courts. Each was appointed by the President to serve as an Article III District Court judge and was confirmed by the Senate to do so during “good behavior” – generally until retirement or death. However, appointments of District Court judges to sit on the FISC are made, not by the President but by the Chief Justice, with no subsequent Senate confirmation process, for non-renewable terms of seven years. Hence, there is an anomaly: Article III judges, in their capacities as FISC judges, function at and subject to the constraints of a non-Article III court. The anomaly could be compared to a situation in which a properly appointed and confirmed District Court Judge had been “appointed” by the Chief Justice (rather than by the President) to sit on a Federal appellate court or on the Supreme Court, without Senate confirmation to do so. At least there, and quite unlike the FISC situation, an Article III judge would be sitting on an Article III court.
Even pretending arguendo that the FISC is an Article III court, it is one from which there is no effective means of appeal. Its proceedings are initiated by a governmental entity without notice to any proposed “snoopee.” Proceedings are held ex parte and in camera. When the FISC decides on the disposition of a case, its decision is provided to the initiating governmental entity and otherwise is almost uniformly kept secret. There is a right of appeal to the Foreign Intelligence Surveillance Court of Review (FISCR) – but only for the governmental entity which sought the decision.
The Court of Review is not an adversarial court; rather, the only party to the court is the federal government, although other parties may submit briefs as amici curiae. Records of the proceedings are kept, but they are classified, although copies of the proceedings with sensitive information redacted may be made public. [Emphasis added.]
The judges of the Court of Review are district or appellate federal judges, appointed by the Chief Justice of the United States for seven year terms. The terms are staggered so that there are at least two years between consecutive appointments. A judge may be appointed only once to either this court or the FISC.
Even if the statute provided (and it does not) a way for a snoopee to appeal to the FISCR, there would be no effective way to exercise that right without notice and the text of the decision. Although appeals from FISCR can go directly to the Supreme Court, there is for practical purposes no way to go there with, at best, a heavily redacted version of a classified decision.
Article III courts are unavailable for relief.
Article III courts entertain cases and controversies; they do not render advisory opinions. Under the long ago established doctrine of “standing,”
Standing, sometimes referred to as standing to sue, is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute. The person must have a personal stake in the outcome of the controversy. [Emphasis added.]
The standing doctrine is derived from the U.S. Constitution’s Article III provision that federal courts have the power to hear “cases” arising under federal law and “controversies” involving certain types of parties. In the most fundamental application of the philosophy of judicial restraint, the U.S. Supreme Court has interpreted this language to forbid the rendering of advisory opinions. [Emphasis added.]
Unless a snoopee can show that he is being (or has been) spied upon unlawfully, he likely has no more standing than does anyone not being spied upon who simply considers the practice unlawful as a matter of principle. The American Civil Liberties Union (ACLU) recently tried, by filing a complaint with the Federal District Court for the Southern District of New York. That’s a good sign, and I wish them the best of luck. However, I won’t hold my breath.
The Fourth Amendment applies
Under the Fourth Amendment,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and 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. [Emphasis added.]
The Fourteenth Amendment applies the Bill of Rights to laws and actions by the individual States; that clearly suggests, as we already knew, that the Bill of Rights also applies to the laws and actions of the Federal Government.
Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [Emphasis added.]
In this situation, how can the “due process of law” be used to ensure the security of ”persons, houses, papers, and effects, against unreasonable searches and seizures?” Can the Fourth Amendment be read, legitimately, without relation to the First – “Congress shall make no law . . . abridging the freedom of speech, or of the press?”
True, the First Amendment makes no mention of electronic communication. However, the Supreme Court’s Citizens United decision appears to have been based in part on the thesis that to the extent that electronic speech is not protected, neither is any other type. Hence, if the electronic communications rights involved in Citizens United could be abridged legitimately, so could non-electronic means of communication such as books. As noted here,
Justice Kennedy’s majority opinion found that the BCRA §203 prohibition of all independent expenditures by corporations and unions violated the First Amendment’s protection of free speech. The majority wrote, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”
Justice Kennedy’s opinion for the majority also noted that because the First Amendment (and the Court) does not distinguish between media and other corporations, these restrictions would allow Congress to suppress political speech in newspapers, books, television, and blogs. The Court overruled Austin, which had held that a state law that prohibited corporations from using treasury money to support or oppose candidates in elections did not violate the First and Fourteenth Amendments. The Court also overruled that portion of McConnell that upheld BCRA’s restriction of corporate spending on “electioneering communications”. The Court’s ruling effectively freed corporations and unions to spend money both on “electioneering communications” and to directly advocate for the election or defeat of candidates (although not to contribute directly to candidates or political parties). [Emphasis added.]
Freedom of speech and freedom of press exercised electronically are no less protected by the First Amendment than are those exercised through eighteenth century typesetting machines and acoustic devices such as megaphones. Yet no judicial review appears to be available for such abridgments as countenanced by the FISC.
Mr. Turley wrote and published two other excellent articles yesterday, Putin Praises Obama for Russian-Style Surveillance Systems and Upping The Ante: The Administration Multiplies Claim of “One Plot” To “Dozens” Foiled by the Warrantless Surveillance Programs.
Putin Praises Obama’s America.
President Barack Obama said that he wanted to “reset” relations with Russian President Vladimir Putin and bring the countries closer together. He appears to have succeeded. Yesterday, Putin defended Obama in creating a warrantless surveillance system that is much like Russia’s. In the meantime, a leading Chinese dissent in the United States has said that the program reminds him not of Russia but the police state in China. It appears that Obama can finally claim to have broken down the differences between the United States and both Russia and China in his new America. All we had to do is change our whole notion of privacy (as well as other legal concepts like perjury).
Putin was delighted that the United States was reinvented itself in his image and complimented the massive surveillance system as “the way a civilized society should go about fighting terrorism.” He added that he loved how the New York government crushed the Occupy Wall Street movement: “That’s the way it’s done in the U.S., and that’s the way it’s done in Russia.”
Putin loves the two publicly confirmed surveillance programs since “[t]hat’s more or less the way a civilized society should go about fighting terrorism with modern-day technology. As long as it is exercised within the boundaries of the law that regulates intelligence activities, it’s alright.” [Emphasis added.]
It is apparent that the current spying efforts are not within the boundaries of United States statutory law, because they fall outside the boundaries of the Constitution, as suggested above.
Since things are like that in China too, there may be enough commonality to set the world straight and make the world safe for “democracy” — where all pigs are equal, some more equal than others, cf. Animal Farm.
If that wasn’t enough for Obama and his congressional allies, leading Chinese dissent and artist Ai Weiwei says that he also recognizes the system being maintained by Obama: the police state in China. He added “I lived in the United States for 12 years. This abuse of state power goes totally against my understanding of what it means to be a civilised society, and it will be shocking for me if American citizens allow this to continue.”
Upping the Ante article
In the article about the plots mysteriously uncovered by spying on Americans, Mr. Turley observes that there is no accountability.
The wonderful thing about secret massive databanks is that its use is . . . well . . . secret. After the surveillance programs involving all calls from citizens and hundreds of millions of emails were disclosed, congressional allies came forward to claim that one “possible plot” was foiled by the program. Of course, they could not tell anyone about the plot even after other members of the Senate said that they doubted that claim. National Security Agency director Army Gen. Keith Alexander, however, has decided that just one potential plot is not enough. So he testified this week that “dozens” of potential plots have been foiled in an effort to get citizens to redefine privacy in a more surveillance friendly image.
For many civil libertarians, the Administration and Congress will have to forgive the feeling that this is like asking “who are you going to believe the courts or the people who were secretly spying on you?” What makes this particularly fascinating is the small problem of the past false testimony on surveillance given by intelligence officials in congressional hearings — testimony known to be false by the Senators in attendance. Yet, now we are told to simply accept on faith that dozens of “potential” plots were stopped. Putting aside the past exaggeration of intelligence claims, this testimony (and the hearing itself) seemed designed to (as with the prior torture program under Bush) to get the public to forget about privacy and constitutional protections by keeping fear alive.
Put more briefly, “lie to us too often and we might not believe you the next time,” see The Boy who Cried Wolf. The IRS did not “target” the tea party organizations. Then, when it became necessary to acknowledge having done so, it was all the fault of low level staffers. Whoops. We tried to fire the high level gal, Lois Lerner, who may have orchestrated it but she declined the honor and is now on
gardening leave paid administrative leave. Holly Paz, one of Lois Lerner’s immediate subordinates, has been fired but maybe not.
Others have either retired or been placed on administrative leave, including Washington lawyer Carter Hull, who has been accused of micromanaging the processing of tea-party cases, and who, according to IRS sources, requested his retirement package on March 12; Joseph Grant, the commissioner of the agency’s Tax-Exempt and Government Entities division and Lois Lerner’s boss, who retired on June 3 just days after receiving a promotion; former IRS commissioner Steven Miller, who resigned days after news of the scandal broke . . . .
The “vile” video that caused the Benghazi bumps in the road? Well, upon mature reflection that may not have been the sole cause. Whoops, the video probably had nothing to do with those bumps even though the masquerade continued for at least a couple of weeks — all for a good cause — but that’s too confusing for mere mortals to understand. Bureaucracies are difficult to control when they get really big, so let’s make them bigger. Then the Administration, where big thinking is the only acceptable kind, should be better able to control them. However, David Axelrod seems to think the Government is already too big. Or something like that. Be that as it may, “don’t ask — don’t tell” is seen as the best policy, except in the military. Besides, what difference does it — any of it — make now? Can’t we all just kiss and make up? Please?
Damn it, just trust us anyway; it’s for your own good
and ours because if you don’t you will just become even more confused. Wouldn’t you like to learn lots more instead about the latest Leyla Ghobadi cheating scandal and the drug travails of Lindsay Lohan? Boy! Do we have scoops for you! Look: here are their e-mails. Have fun. And then try to figure out whether Sarah Palin is secretly married to Kim Jong-un — she has never actually denied it, you know.
Continuing with Mr. Turley’s article,
I am still struck by the spectacle of these hearings after the disclosure of false testimony by people like James R. Clapper Jr., the director of national intelligence. Clapper has recently said that his testimony was “the least untrue” statement that he could make. Yet, of course that would still make it an untrue statement — which most people call a lie and lawyers call perjury. Indeed, when Roger Clemens was prosecuted for untrue statements before Congress, he was not told of the option to tell the least untrue statement on steroid use.
Yet, it is important to note that Senators have come forward to admit that they knew of the massive surveillance program. So, when Clapper was given untrue testimony, these Senators sat quietly and allowed the public to be lied to. They are now holding hearings that assure the public that it can trust them that these programs have foiled “dozens” of plots. It is asking rather a lot from any citizen, but it may be the last measure of devotion demanded by this President.
That is what we have come to expect — and to get — from too many of the CongressCritters whom we continue to reelect, our President who was just reelected and the vast
right wing Government conspiracy. Is there a way to stop the merry-go-round? Drastic, but if necessary maybe we can just jump off and hope for the best. Perhaps we should decide whether emasculating the Constitution is the best way to preserve it. I don’t think it is.
It’s been a long time since I practiced law, having retired after thirty years in 1996 to go sailing with my wife in the Caribbean; we now live in the highlands of rural Panamá. Much that is now happening was not happening between 1966, when I was graduated from law school, and 1996 when I retired. It is not merely possible, it is probable, that I am inadequately up to date on the law pertinent to current goings on. To the extent that my analysis is flawed, I hope that those who find my errors will let me know.