Topic: Law and Civil Liberties

More on the Spying Bill

I’ve got a write-up of this weekend’s spying bill up at Ars Technica. It’s pretty bad:

Before undertaking surveillance activities, intelligence officials would need to obtain a certification from the Attorney General and the Director of National Intelligence—both subordinates of the president—that there were “reasonable procedures” in place for ensuring that the eavesdropping “concerns” persons located outside the United States, and that the foreign intelligence is a “significant purpose” of the surveillance activities. That certification would only be reviewed after the fact, and only to determine if the procedures were, in fact, “reasonable.” A single certification could approve a broad surveillance program covering numerous individuals, and no judge would review the list of individual targets.

Moreover, the requirement that surveillance “concern” non-U.S. persons could plausibly permit spying on the relatives, friends, and business associates of a foreign target. Indeed, the administration might argue that the only way to obtain all information regarding foreign targets is to conduct dragnet surveillance of American communications and sift through them to find relevant information.

The legislation empowers the administration to “direct” individuals to “provide the government with all information, facilities, and assistance necessary” to carry out foreign surveillance. These quasi-subpoenas would not be subject to judicial review before they were issued. The targets of such orders—who will typically be telecom company executives, not terrorism suspects—have the option of appealing the order to the FISA court, but given the broad scope of surveillance activities authorized by the legislation, it seems unlikely that such challenges would succeed. Moreover, the legislation offers legal immunity to those who comply with such orders, so telecom providers will have little incentive to resist them.

The only real bright spot is that the legislation sunsets after six months. That will give Congress the opportunity to do what it should have done this weekend: require that no surveillance of domestic communications occur without prior judicial approval of each surveillance target. I’m not going to hold my breath.

Bush, Congress, and Terrorism

Last year President Bush was able to rush the dubious Military Commission Act through the Congress.  This year he was able to rush through another surveillance measure.  In my view, the President’s legislative ‘achievements’ have little to do with persuasion.  It is about the politics of anti-terrorism legislation.  That is, if a member of Congress does not support the proposal under consideration, it means he or she is too ‘soft.’  Even though we’re about six years past 9/11 and even with the track record of Attorney General Gonzales, most legislators put their reservations aside, curl up into the fetal position and say “I am against the terrorists too,” as they vote in favor.  Last year, Senator Specter went so far as to say that he hoped the courts would strike down as unconstitutional the bill he just voted for.  Whatever one thinks about the legislative details of the Patriot Act, the Military Commission Act, or this “Protect America Act of 2007,” all friends of liberty ought to be disturbed by this political climate.  The question is: When will this vicious cycle of anti-terrorism legislation stop?  In a Giuliani administration?  In a Clinton administration?

For more on the new law, go to the Balkinization blog.  Tomorrow, Glenn Greenwald and Lee Casey will be here discussing the legacy of the Bush presidency.  Watch it online.

Mr. Gonzales

Alberto Gonzales is arguably our worst attorney general. It is true that he has misled Congress, the courts, and the public, but there is too much attention being paid to political questions such as: Who put together that list of U.S. attorneys to be fired? Was it Gonzales, his chief of staff, or did Karl Rove say something about a U.S. attorney to anyone else in the administration at some point?

Instead, members of Congress investigating Gonzales should focus on these misleading policy statements:

1.  Gonzales on Bush’s order creating military tribunals: “The order preserves judicial review in civilian courts.”

This is what the order says: Individuals who are designated “enemy combatants” by President Bush “shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribubal.” (Section 7(b)(2) of Bush Military Order, November 13, 2001; emphasis added). This order “preserves” judicial review?

2.  In February 2002, President Bush pledged that prisoners in the war on terror would be treated humanely. As White House counsel, Gonzales presumably helped the president with this pledge. When newspaper reports of mistreatment began to appear, members of Congress pressed Gonzales about administration policy. Gonzales then admitted that the administration’s humane policy order did not bind CIA personnel involved in prisoner interrogations. A minor oversight?

3.  “National Security Letters” direct recipients to hand certain specified items over to the FBI agents who serve the Letters. When constitutional questions were raised about these Letters, Gonzales argued that citizens would just know that they really didn’t have to comply with the Letter and that they could consult with an attorney and challenge it in court — nothwithstanding the letter’s warning not to discuss the matter with any person. 

It is common sense to do the opposite of what FBI agents demand? That’s a curious statement from an Attorney General. 

 Of course, we should also be alarmed by Gonzales’s straightforward statements of policy:

1.  In legal briefs in the Padilla case, this administration argued that Americans can be whisked away to military prison on the say-so of the president.

2.  The habeas corpus provision in the Constitution does not guarantee anything.

Gonzales should go. More background here.

Is the NSA Above the Law?

As I report today in Ars Technica, a federal judge in California allowed continued investigations by five state regulators into allegations that AT&T has been collaborating with the National Security Agency in a massive warrantless wiretapping program.

However, the judge, Vaughn R. Walker, declined to rule on the government’s central argument, that the investigation could run afoul of the state secret privilege. On that issue, Judge Walker deferred to the Ninth Circuit, which is currently considering the case of Hepting v. AT&T, a class-action lawsuit alleging that AT&T has violated its customers’ rights by participating in the NSA program. The Electronic Frontier Foundation, which is representing the plaintiffs in the case, has secured a sworn statement from a former AT&T employee alleging that the company has allowed the NSA to build a secret facility inside its San Francisco office and diverted massive amounts of Internet and voice traffic through the room to allow the NSA to use the information as it wishes.

I’m not an expert on the legal minutia of the state secrets privilege, but the Bush administration is making what strikes me as an incredible claim: that the NSA program’s very existence (or non-existence) is a state secret, that it would be impossible to litigate such a case without revealing sensitive information about how such a program worked, and that therefore any case related to such a program must be dismissed immediately, before it reaches trial or even discovery.

It’s hard to see how this position can be reconciled with the rule of law. Americans have rights under the Fourth Amendment and the Foreign Intelligence Surveillance Act against indiscriminate domestic surveillance. But if the government can defeat all legal challenges to a program merely by designating it a state secret, it’s hard to see how those rights can ever be vindicated.

I suppose if the Bush administration can opt out of habeus corpus merely by declaring someone an enemy combatant, they can opt out of the Fourth Amendment by declaring their surveillance activities to be state secrets.

FBI’s Argument is ‘Absurd’

Today, a federal judge awarded plaintiffs $101 million in a lawsuit that was filed against the federal government. FBI officials looked the other way as the plaintiffs were framed for crimes that they did not commit. FBI lawyers said there was no merit to the lawsuit because the FBI had no obligation to come forward with the information it had. The federal judge said that was “absurd.” 

Will the FBI headquarters inform the tourists who visit their facility of its peculiar legal argument? The question sorta answers itself, doesn’t it?   

A great legal victory, to be sure. Unfortunately, I expect the government attorneys will offer a substantially lower amount — or threaten to drag the case through the appellate courts for several more years. Still, this is an important precedent.

It is an outrage that so many wrongfully convicted people get little or no compensation. I don’t know how these politicians can spend the enormous sums that they do and let this go on. Do we need any additional argument for term limits (pdf)?

Previous coverage of this litigation can be found here.

Illegal Manicure in the ‘Live Free or Die’ State

In response to to my post about a (possibly) illegal hairdresser in Massachusetts, Michael Hampton of Homeland Stupidity forwards a link to a priceless local New Hampshire news report. (It’s two years old, but it’s new to me and to this blog.)

Free State Project member Mike Fisher performed an illegal manicure right in front of the “Live Free or Die” state’s Board of Barbering, Cosmetology and Esthetics. (Motto: Yew Best Drop That Thar Em’ry Board, Son.)

When the police asked Fisher if he had a license to perform that thar manicure, Fisher said no. When the police issued him a summons and asked that he stop performing that thar manicure, Fisher refused. So the cops slapped handcuffs on this dangerous outlaw and put him in a squad car. Fisher reportedly received a 30-day suspended sentence, with a vow from the judge that if Fisher receives so much as a traffic ticket, it’s off to the pokey he goes.

I wonder what the Granite State wasn’t doing with the time and resources used to arrest and prosecute Fisher.

Hash Brownies and Harlots in the Halls of Power

Eight British Cabinet ministers have admitted that they smoked marijuana in their youth, most of them “only once or twice” in college, which would be an atypical pattern. The revelations began with Jacqui Smith, the new Home Secretary, the equivalent of the attorney general. They also include the police minister and the Home Office minister in charge of drugs. The eight have been dubbed the “Hash Brownies,” in acknowledgment of Prime Minister Gordon Brown.

On Wednesday Brown announced that Smith would lead a government review of the laws on marijuana, specifically with reference to whether simple possession should be again grounds for arrest. (The law was eased in 2002.) Several leading Conservatives in the Shadow Cabinet have also acknowledged using drugs, and party leader David Cameron has emulated President Bush in saying that he’s not obligated to discuss every detail of his private life before he entered politics.

In the United States many leading politicians including Al Gore, Newt Gingrich, Bill Bradley, and Barack Obama have admitted using drugs, while Bush and Bill Clinton tried to avoid answering the question.

In both Britain and the United States, all these politicians support drug prohibition. They support the laws that allow for the arrest and incarceration of people who use drugs. Yet they laugh off their own use as “a youthful indiscretion.”

These people should be asked: Do you think people should be arrested for using drugs? Do you think people should go to jail for using drugs? And if so, do you think you should turn yourself in? Do you think people who by the luck of the draw avoided the legal penalty for using drugs should now be serving in high office and sending off to jail other people who did what you did?

And the same question applies to Sen. David Vitter, who has acknowledged employing the services provided by the “D.C. Madam.” Many people have compared Vitter to other politicians who engaged in adultery, or have mocked his commitment to “family values”–he has said that no issue is more important than protecting the institution of marriage from the threat of gay couples getting married. But the other politicians usually cited were not breaking the law when they had affairs, and Vitter’s hostility to gay marriage while cheating on his own is a matter of simple political hypocrisy. The more specific issue, as with the pot-smoking drug warriors, is that Vitter (presumably) supports the laws against prostitution. Yet he himself, while a member of the United States Congress, has broken those laws and solicited other people to break them.

Vitter should be asked: Do you think prostitution should be illegal? If so, will you turn yourself in? Or will you testify for the defense in the D.C. Madam case, asking the court not to punish Deborah Jeane Palfrey if it’s not punishing you?

I hope that Jacqui Smith, Barack Obama, and David Vitter will engage in some introspection and conclude that if they didn’t deserve to go to jail, then neither do other pot smokers, prostitutes, and their customers. They might decide that not every sin or mistake should be a crime. But they should not sit in the halls of power, imposing on others the penalties they don’t think should apply to them.