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Dueling judicial rulings on NSA Spying, and why they don’t matter

2:18 pm in Uncategorized by Shahid Buttar

Two federal judges reached opposite conclusions in separate cases challenging NSA spying. One was thoughtful; the other reflected much of what is wrong with our courts. Ultimately, however, neither will matter. The NSA’s dragnet continues unabated, and only Congress is poised to stop it.

NSA seal

Only Congress can stop the NSA.

Dueling judicial rulings on NSA Spying

Two weeks ago, US District Judge Richard Leon rightly described the NSA’s domestic spying operations as an “indiscriminate and arbitrary invasion.” He ruled in favor of a preliminary injunction against the programs, and stayed his ruling pending appeals that could go on for years.

Last Friday, Judge William Pauley opined that the NSA’s program does not violate the Fourth Amendment, prompting outrage among observers who understand either the NSA’s programs, or the role of courts, better than Judge Pauley. His decision reflects a disturbing judicial deference to executive spin, and undermines not only constitutional rights, but also judicial independence.

Why Judge Pauley’s ruling is silly: what congressional oversight?

We’ve known for some time of executive officials of lying to Congress about the NSA’s domestic dragnet.

Yet Judge Pauley’s deferential opinion states that the NSAs domestic spying programs have been subjected to rigorous oversight by all three branches of government. That is simply and demonstrably false: multiple members of Congress have publicly complained that they were kept in the dark, and even those few who were exposed to the programs through their roles on oversight committees have posed tough questions, only to hear lies in response.

Several members of Congress have gone so far as to seek the prosecution of the Director of National Intelligence for deliberately misleading Congress about the scope, extent, and scale of NSA spying —which, even after the litany of revelations this year, remain unknown to the public, press, and Congress.

Among the members of Congress seeking to curtail NSA powers are the original authors of the PATRIOT Act themselves, who claim that they never intended their signature legislative achievement to be abused as it has been over the past decade. Yet Judge Pauley relied on congressional approval of the programs.

Why Judge Pauley’s ruling is silly: effectiveness? really?

Judge Pauley also predicated his decision on the supposed effectiveness of the NSA’s programs, which the president’s own review board rejected a week before the judge released his poorly reasoned opinion. Even to whatever extent the programs were proven effective — which they have not been — that issue would be well outside the judicial scope of inquiry.

The Fourth Amendment requires searches and seizures to be justified with a specific warrant. In this context, the crucial jurisprudential question is whether or not NSA collection of telephony metadata counts as conducting a “search” or “seizure.”

Why Judge Pauley’s ruling is silly: what’s a search?

In 1979 — over 30 years ago, well before the rise of anything even remotely resembling the Internet — the Supreme Court held that capturing telephony metadata did not constitute a search when the government pursued a specific target, for whom authorities had a basis for individual suspicion, in the context of a particular investigation.

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Will Obama’s second term finally fulfill his 2008 promises? (Part I)

5:37 pm in Uncategorized by Shahid Buttar

This article was originally published on the People’s Blog for the Constitution and is the first in a forthcoming series articulating specific civil liberties recommendations for the second Obama administration.

President Obama’s reelection has sparked an onslaught of analysis attempting to define the agenda for his second term. Will it reflect the vision of restoring liberty and security on which the president ran in 2008, or the disappointing passivity towards the national security state that characterized his first term?

More to the point, will President Obama’s legacy include emerging American authoritarianism, or instead the recovery of constitutional freedoms lost over the past decade? While machinations in Washington will of course influence the answer, We the People will play a crucial role, well beyond the 2012 election, in determining the outcome.

Obama’s legacy of constitutional violations

With the broad strokes that history affords the past, any president’s legacy usually shrinks within a decade to two or three elements. For instance, Clinton is remembered for presiding over the tech boom and resulting federal surplus, dismantling welfare and escalating mass incarceration, and surviving a partisan impeachment effort prompted by sophomoric sexual indiscretion.

George H. W. Bush’s legacy includes the first Iraq war, failing to energize the economy, and a premature pledge not to raise taxes. We remember Ronald Reagan for overcoming the Soviet Union and its satellites (even if his methods ensured the contemporary budget crisis, created al-Qaeda, and emboldened Iran), heralding “morning in America” to end a recession, and after surviving an assassination attempt, conveniently growing unable to recall more or less anything about compounding scandals that stained his second term.

In these broad strokes, President Obama’s legacy will likely include memories of the historic debate over healthcare policy in 2009, and the recurring budget crises that, combined with GOP intransigence, have periodically brought Washington to a standstill under his administration. The most enduring part of his legacy, however, will be the entrenchment of the national security state on his watch.

Beyond merely failing to reverse the trajectory of the Bush-Cheney administration, Obama’s first term extended it, pioneering new abuses while entrenching old ones.

Unlike Obama, Bush & Cheney never asserted the authority to kill US citizens based on their speech.

Unlike Obama, Bush & Cheney never signed into a law a statute granting the military the power to detain any American without evidence or proof of crime.

While Bush & Cheney violated international law by authorizing torture, it took the Obama administration to decide  that such criminal acts would go unpunished (or even investigated), ensuring their recurrence and nailing the coffin of international human rights.

The Obama administration’s prosecution of whistleblowers who sacrifice their jobs to defend the public interest has reached unprecedented levels, as have deportations of undocumented workers, their families, and occasionally, even US citizens. Rather than repudiate the Bush & Cheney paradigm, Obama has unfortunately perpetuated it.

A former President’s warning

50 years ago, a president with the deepest military roots among any who has held office since then–no mere General, but the Supreme Allied Commander during World War II, Dwight “Ike” Eisenhower — issued a disturbing warning about a threat to our democracy posed by “an immense military establishment and a large arms industry” that, together, he described as “the military-industrial complex.” President Eisenhower said, in no uncertain terms, that:

“[W]e must guard against the acquisition of unwarranted influence…by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.

We must never let the weight of this combination endanger our liberties or democratic processes. We should take nothing for granted. Only an alert and knowledgeable citizenry can compel the proper meshing of the huge industrial and military machinery of defense with our peaceful methods and goals, so that security and liberty may prosper together.”

Ike observed the larval stages of a dynamic that has grown only more pernicious since he left office. In the decade since 9/11, under Presidents Bush and Obama alike, our military-industrial complex has initiated not only various military conflicts abroad, but also a domestic war on the constitutional rights of the American people.

Secret and increasingly immune to public accountability, if not above the law altogether, and insulated from accountability by elected leaders from each of the major political parties, an alphabet soup of federal agencies has emerged to pursue a duplicative, wasteful, and constitutionally abusive national security agenda.

Eisenhower proved prescient. True to his prediction, the contemporary national security racket offends all Americans, regardless of ideology.

Casualties of the national security state: transparency, accountability, and legitimacy

First, it has erected such pervasive secrecy that it threatens the basis for democratic accountability, subverting the consent of the governed on which democratic  legitimacy depends. For years, the NSA operated its dragnet warrantless wiretapping scheme in total secrecy, not only unauthorized by statute, but in direct violation of the Foreign Intelligence Surveillance Act (FISA) enacted by Congress in the 1970s to stop domestic spying.

Every federal court ever to review the program on the merits has struck it down as unconstitutional, yet it persists unabated. Congress bent over backward to rewrite the FISA law in 2008, and appellate courts have thrown out numerous lawsuits challenging it based on the perverse reasoning that, because the NSA’s program is secret, no plaintiffs can prove that they, in particular, have been monitored.

Officials have admitted to violating even the permissive new law. Members of Congress have asked tough questions and received only silence in response. Yet, reflecting a disturbing pattern of bipartisan abdication repeated over the past decade, the House recently voted to reauthorize the 2008 FISA amendments for another five years, even beyond the next administration.

Secret programs violating contrived statutes, especially with the blessing of (supposedly) independent courts, make a mockery of our claim to live in “a land of the free.”

Further installments in this series will examine the ideologically diverse social movements abused by misguided and constitutionally offensive domestic spying activities, as well as the contribution of those programs to the federal budget crisis. The series will conclude by suggesting not one, but two alternative national security agendas for President Obama’s second term.

Photo by leighblackall under Creative Commons license.