You are browsing the archive for Supreme Court.

Hedges v. Obama: The Supreme Court digs its head deeper into the sand

11:26 am in Uncategorized by Shahid Buttar

Outside the US Supreme Court

 The Supreme Court declined to consider  a constitutional claim challenging a law that enables indefinite detention of US citizens.

On Monday, the Supreme Court declined to consider Hedges v. Obama, a constitutional claim challenging a law that could enable the indefinite military detention of US citizens—within the US—without trial, charge, or evidence of crime. The decision is remarkable, both for its implications for fundamental rights, and its reflection on judicial independence.

A dangerous and controversial law

When the National Defense Authorization Act of 2012 was first signed into law on the last day of 2011, few observers noticed. Some version of the bill is passed every year, but the 2012 version inserted dangerous provisions that could expand the military’s domestic detention powers.

Several notable observers did take notice, however. Despite her complicity in mass NSA surveillance, Senate Intelligence Committee Chair Dianne Feinstein (D-CA) has spoken out against torture, as well as detention. When Congress debated the 2013 NDAA in 2012, she unsuccessfully tried to limit the detention provisions through amendments.

Military families also spoke out, supporting a county resolution in El Paso County, Colorado (the site of several military installations, including the Air Force Academy) that passed even before the bill became law. They recognized that:

[O]ne of our most fundamental rights as American citizens is to be free from unreasonable detention without due process of law, a right afforded to us by our Founding Fathers and guaranteed to us by over two centuries of sacrifice by our men and women in the Armed Forces whom we daily recognize and honor;

US District Judge Katherine Forrest also shared similar concerns. In September 2012, she issued a permanent injunction aimed to prevent the detention provisions from going into effect. She wrote that:

The due process rights guaranteed by the Fifth Amendment require that an individual understand what conduct might subject him or her to criminal or civil penalties. Here, the stakes get no higher: indefinite military detention–potential detention during a war on terrorism that is not expected to end in the foreseeable future, if ever. The Constitution requires specificity–and that specificity is absent.…

Although § 1021(b)(2) does not, strictly speaking, suspend the writ of habeas corpus, it eliminates all other constitutionally-required due process (indeed, leaving only the writ)

The Second Circuit’s decision to reverse her decision, and Monday’s Supreme Court decision to allow that reversal to stand, have dangerous and disturbing implications. The Snowden revelations may help explain why.

A whole worse than the sum of its parts

The power to detain—or, for that matter, kill—without charge or trial effectively inverts the presumption of innocence. Due Process requires the state to prove allegations before meting out punishments. Yet the indefinite detention powers of the NDAA could empower our military to imprison Americans on the basis of mere accusation, effectively treating people accused as if guilty until proven innocent.

Our nation has already legalized torture with impunity. Beyond undermining human rights, fueling terrorist recruitment and generating bad intelligence, torture also enables future officials to paint anyone potentially detained as guilty—even without proof, on the basis of “confessions” coerced by interrogators.

In other words, the NDAA could enable government detention, possibly of targets identified through the surveillance regime exposed by Snowden. While President Obama has renounced so-called “enhanced interrogation,” those detainees remain potentially vulnerable to torture techniques that could effectively contrive their guilt.

The only things as disturbing as the power to torture people into false confessions are the powers (1) to detain them without cause, (2) monitor them en masse in secret (potentially to identify potential dissidents), and (3) arbitrarily profile individuals and communities according to their race, religion, or point of view.

All of these powers are currently well-established in American law. Together, they could form the foundations for severe oppression, or even mass atrocity. Once triggered, it will take very little to bend those dangerous powers to horrific ends—and a great deal to stop them.

This is one reason why detention without trial—like mass surveillance—has always been viewed as a defining cornerstone of authoritarianism. The relevant question is not whether these powers can be abused: it’s whether anyone self-censors because they know they’re being watched, which has already been well documented.

The judiciary vs. itself

Also disappointing is the judiciary’s self-marginalizing erosion of its own independence. Our courts have abandoned not only the Constitution, but also themselves.

Read the rest of this entry →

Clapper v Amnesty: Courts and Congress v Our Constitution

9:30 am in Uncategorized by Shahid Buttar

This article was originally published on the People’s Blog for the Constitution.

US Supreme Court

Tuesday’s decision by the Supreme Court in Clapper vs Amnesty Int’l reflects judicial formalism at its worst. The decision abandons fundamental rights and the courts’ constitutional mandate, while placing government agencies above the law, so long as they commit their abuses in secret.

Clapper is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government all at once. By allowing executive secrecy to insulate violations from review, five Justices of the Supreme Court have effectively killed what shreds once remained of the Fourth Amendment.

Every American should be gravely concerned, and anyone who still considers America “the land of the free” should carefully reconsider their assumptions. Several elements of the decision are disturbing, especially when viewed in a broader context beyond the case itself.

Most obviously disappointing is the result of the ruling, not only for the plaintiffs, but also anyone who uses the phone system or Internet.

A scandal in plain sight

The Clapper saga started with the Foreign Intelligence Surveillance Act, which was first passed in the 1970s to restrict domestic spying by government agencies. It was prompted by decades of abuses by the FBI, CIA, and other agencies that Congress investigated and found conducting “a sophisticated vigilante operation aimed squarely at suppressing the legitimate exercise of First Amendment rights of speech and association,” including a documented government campaign to “neutralize” Martin Luther King, Jr. and other civil rights leaders.

In 2002, the Bush administration authorized the National Security Agency (the NSA) to begin a secret warrantless wiretapping program in clear violation of the FISA law. It remained secret, at one point prompting a dramatic intra-executive showdown and threats of a mass resignation by Justice Department officials under the Bush administration, until the New York Times exposed the program in late 2005.

Aside from generating an earthquake across Washington, the first results of the Times‘ expose included government threats to prosecute the journalists. Their only “crime” was exposing the public to an issue that should never have been secret in the first place.  While prosecutors thankfully opted not to prosecute Lichtblau & Risen, others continued to face prosecution for pursuing transparency in the public interest.

In the middle of the 2008 presidential election race, Congress amended FISA to permit what the original statute had been passed to prohibit. Rather than require the agency to comply with the long-standing law, however, Congress instead watered down the law to allow the agency’s abuses to continue.

Congress’ 2008 amendments to FISA doomed oversight. As the dissenting Justices in Clapper observed, the 2008 amendments allow NSA monitoring not only of agents of a foreign power, but also law-abiding Americans. Congress in 2008 also removed FISA’s original requirement for the NSA to identify specific targets and locations for surveillance, enabling the agency to conduct bulk collection, or dragnet surveillance. Finally, the 2008 amendments subsidized corporate crime, extending a corporate subsidy in the form of immunity from lawsuits alleging privacy violations, ensuring that telecommunications companies could continue facilitating unconstitutional surveillance without fearing lawsuits from a justifiably hostile public.

That was the context in which a group of activists, journalists, and lawyers among the most likely suspects for NSA surveillance filed suit.

Closing the courthouse doors

Read the rest of this entry →

Supreme Court hears GPS tracking case

8:53 am in Uncategorized by Shahid Buttar

Supreme Court - SepiaYesterday, the Supreme Court heard arguments in US v. Jones, a case regarding police use of GPS tracking devices in criminal investigations. The case has dire Fourth Amendment implications.

In its decision, the Supreme Court will settle differences between rulings of two federal appeals courts. In one case, US v. Jones, the lower court overturned a conviction, saying that police use of GPS tracking devices without a warrant violated the Fourth Amendment. In the other, US v. Pineda-Moreno, a different court upheld a conviction based on evidence obtained from a GPS tracker placed on the suspect’s car while it was parked in his driveway, denying that he had an expectation of privacy there.

Ahead of the arguments, I spoke to Lawyers.com, explaining that the Pineda-Moreno ruling makes a

ridiculous class distinction. It means that if you have enough money to enclose your property with a fence, the police can’t enter because you have an expectation of privacy within your property. If you don’t have those resources, then police can come in and attach a GPS device to your car without any judicial checks or balances. The decision means the Fourth Amendment doesn’t apply equally to everyone.

But it’s not just the class issues that create problems, as I noted in that same piece:

Buttar fears that if the Court doesn’t look beyond the formalistic Fourth Amendment analysis, the government will gain the unbridled power to track anyone, anytime, anywhere, without any oversight. But, he says, if the Court instead considers the purposes of the First, Fourth, or Fourteenth Amendments – which include protecting rights of association, privacy, free exercise of religion, and racial & ethnic minorities – the outcome will be different.

It’s easy to see how GPS tracking helps law enforcement catch criminals. After all it helped win these two convictions. But Buttar claims that the benefit to the government of warrantless GPS tracking is “trivial when you consider how easy it is for law enforcement to get a warrant. Compare the vast investigatory powers police already have against the profound harm to privacy and associational rights in removing any judicial check on warrantless location tracking. In asserting this authority, our government is claiming police powers more like those in the Soviet Union or Communist China, well beyond the traditionally limited government powers on which we Americans, inspired by our Founders, have always insisted.”

We at the Bill of Rights Defense Committee will be monitoring developments in this crucial case and posting more information here at FDL and on our blog as it becomes available.

But while we wait for the Supreme Court to rule, there’s more we can do to protect rights in our individual communities. Join—or start!—a local civil rights restoration campaign in your city or town or check out other ways to get involved.