Professional Documents
Culture Documents
Yes Circumvention
Megan/Jonathan/Sukriti/Anshul/Joanna/Eric
Federal
President
Executive will circumvent the NSA- FDR wire tapping
proves
Katyal and Caplan 08 (The Surprisingly Stronger Case for the Legality
of the NSA Surveillance Program: FDR Precendent,
http://scholarship.law.georgetown.edu /cgi/viewcontent.cgi?
article=1058&context=fwps_papers, accessed 7-15-2015, EHS MKS)
This Article explains why the legal case for the recently disclosed National Security
Agency surveillance program turns out to be stronger than what the
Administration has advanced. In defending its action, the Administration
overlooked the details surrounding one of the most important
periods of presidentially imposed surveillance in wartime President
Franklin Delano Roosevelts (FDR) wiretapping and his secret endrun around both the wiretapping prohibition enacted by Congress
and decisions of the United States Supreme Court. In our view, the argument
does not quite carry the day, but it is a much heftier one than those that the Administration has put forth
to date to justify its NSA program. The secret history, moreover, serves as a powerful new backdrop
reasons, the ways in which past Presidents have acted will often be a more useful guide in assessing the
same time as Presidents realize these pressures, they are under an oath to the Constitution, and so the
ways in which they balance constitutional governance and security threats can and should inform practice
today
Surveillance Act . [n43] Congress continued its restructuring of the executive branch's national
security wing, creating the Department of [*501] Homeland Security in 2002 n44 and the Office of the
Director of National Intelligence in 2005. n45
you think to tell whats illegal or unconstitutional when it comes to presidential power. Heritages Elizabeth Slattery and
Andrew Kloster explain: While it might not be possible to define in all instances precisely when an action crosses the line
and falls outside the scope of the Presidents statutory or constitutional authority, what follows is a list of unilateral actions
1. Delaying Obamacares
employer mandate The Administration announced that Obamacare
wont be implemented as it was passed, so employers with 50 or
more employees dont have to provide the mandated health
coverage for at least another year (and longer if they play their cards right). Slattery and
taken by the Obama Administration that we think do cross that line.
2.
Giving Congress and their staffs special taxpayer-funded subsidies
for Obamacare It was uncomfortable for Members of Congress when they realized that, through Obamacare,
Kloster observe that The law does not authorize the President to push back the employer mandates effective date.
they had kicked themselves and their staffs out of the taxpayer-funded subsidies they were enjoying for health coverage.
But the Administration said no problem and gave them new subsidies. In this case, the Administration opted to stretch
getting cancellation notices from their insurance companies because Obamacares new rules were kicking in, the
Presidents broken promise was exposed. He tried to fix things by telling insurance companies to go back to old plans that
dont comply with Obamacarejust for one year. Slattery and Kloster note that The letter announcing this non-
days notice before mass layoffs. And layoffs were looming due to federal budget cuts in 2012. But the Obama
Administration told employers to go against the law and not issue those noticeswhich would have hit mailboxes just
days before the presidential election. The Administration also offered to reimburse those employers at the taxpayers
expense if challenged for failure to give that notice.
welfare reform
The welfare reform that President Bill Clinton signed into law in 1996 required that welfare
recipients in the Temporary Assistance for Needy Families program work or prepare for work to receive the aid. The
Obama Administration essentially took out that requirement by offering waivers to states, even though the law expressly
states that waivers of the work requirement are not allowed. Despite [the laws] unambiguous language, the Obama
6.
Stonewalling an application for storing nuclear waste at Yucca
Mountain This was another case where the Administration simply refused to do what was required by law. An
Administration continues to flout the law with its revisionist interpretation, write Slattery and Kloster.
application was submitted for nuclear waste storage at Yucca Mountain, but Despite the legal requirement, the Obama
President Obama made four recess appointments to the National Labor Relations Board (NLRB) and Consumer Financial
Protection Bureau, claiming that, since the Senate was conducting only periodic pro forma sessions, it was not available to
confirm those appointees. The catch: The Senate wasnt in recess at the time. Courts have since struck down the
appointments, but the illegitimate appointees already moved forward some harmful policies.
As Democratic lawmakers try to repair a deeply flawed bill on electronic eavesdropping, the White House is
pumping out the same fog of fear and disinformation it used to push the bill through Congress this
summer. President Bush has been telling Americans that any change would deny the government critical
information, make it easier for terrorists to infiltrate, expose state secrets, and make it harder to save
American lives. There is no truth to any of those claims. No matter how often Mr. Bush says otherwise,
there is also no disagreement from the Democrats about the need to provide adequate tools to fight
terrorists. The debate is over whether this should be done constitutionally, or at the whim of the president.
enough for the Bush team, which was determined to use the nations tragedy to grab ever more power for
Bushs lawyers tacked dangerous additions onto a bill being rushed through Congress before the recess.
When the smoke cleared, Congress had fixed the real loophole, but also endorsed the idea of spying
without court approval. It gave legal cover to more than five years of illegal spying. Fortunately, the law is
to expire in February, and some Democratic legislators are trying to fix it. House members have drafted a
bill, which is a big improvement but still needs work. The Senate is working on its bill, and we hope it will
show the courage this time to restore the rule of law to American surveillance programs. There are some
red lines, starting with the absolute need for court supervision of any surveillance that can involve
American citizens or others in the United States. The bill passed in August allowed the administration to
inform the FISA court about its methods and then issue blanket demands for data to communications
companies without any further court approval or review. The House bill would permit the government to
conduct surveillance for 45 days before submitting it to court review and approval. (Mr. Bush is wrong
when he says the bill would slow down intelligence gathering.) After that, ideally, the law would require a
real warrant. If Congress will not do that, at a minimum it must require spying programs to undergo
periodic audits by the court and Congress. The administration wants no reviews. Mr. Bush and his team say
they have safeguards to protect civil liberties, meaning surveillance will be reviewed by the attorney
general, the director of national intelligence and the inspectors general of the Justice Department and the
Central Intelligence Agency. There are two enormous flaws in that. The Constitution is based on the rule of
law, not individuals; giving such power to any president would be un-American. And this one long ago
showed he cannot be trusted. Last week, The Times reported that the C.I.A. director, Gen. Michael V.
Hayden, is investigating the office of his agencys inspector general after it inquired into policies on
detention and interrogation. This improper, perhaps illegal investigation sends a clear message of
intimidation. We also know that the F.B.I. has abused expanded powers it was granted after 9/11 and that
the former attorney general, Alberto Gonzales, systematically covered up the presidents actions with
them so promiscuously that the FBI didnt even bother using 215 for more than a
year after the passage of the Patriot Act. Inspector General reports have also made clear that
the FBI is happy to substitute NSLs for 215 orders when even the highly
accommodating FISC manages a rare display of backbone. In at least one case, when
the secret court refused an application for journalists records on First Amendment grounds,
the Bureau turned around and obtained the same data using National Security
Letters.
if
the past is any predictor of the future, that US government officials will
find yet another way around any legal restrictions to continue their Total
Information Awareness project, Rowley said. On Monday, the Foreign Information
Surveillance Act (FISA) Court issued a ruling upholding the National
Security Agency (NSA) to continue bulk collection of metadata, a
whistleblower and former Federal Bureau of Investigation agent Coleen Rowley told Sputnik. I think,
program that was supposed to be ended with the passage of the USA Freedom Act in May 2015. The
ruling was based on a motion filed by civil libertarian groups demanding an immediate end to the
metadata collection program, which was deemed unconstitutional by a US federal appeals court in May
2015. Asked what the Monday ruling means for the future of government surveillance reform, Rowley
stated, I think the Judge [Michael Mosman] probably answered this in his Plus ca change, plus c'est la
meme chose [the more things change, the more they stay the same] quote. The new portion of the
classified files published by The Intercept now reveals how easily it can be done: as easy as typing a few
words in Google. FLICKR/ DON HANKINS NSA Spies Can Hack Any Computer in 'A Few Mouse Clicks'
The FISA decision to take advantage of the five-month period to continue mass surveillance did not come
as a surprise based on the past record of illegal government spying, Rowley explained. The FISA Court
authorizes surveillance carried out by the US intelligence community. The Court is permitted to operate in
secret, due to the classified activity it oversees. Following the September 11, 2001 terrorist attacks, the
George W. Bush administration proposed the implementation of a massive data-mining program called the
Bush-era surveillance powers expire as US prepares to roll back NSA power The USA Freedom Act, a bill
banning the NSA from collecting US phone data in bulk and compelling disclosure of any novel legal
arguments for widespread surveillance before a secret court, has already been passed by the House of
Representatives and on Sunday night the Senate voted 77 to 17 to proceed to debate on it. Between that
bill and a landmark recent ruling from a federal appeals court that rejected a longstanding government
justification for bulk surveillance, civil libertarians think they stand a chance at stopping attempts by
intelligence lawyers to undermine reform in secret. Attorneys for the intelligence agencies react scornfully
to the suggestion that they will stretch their authorities to the breaking point. Yet reformers remember that
such legal tactics during the George W Bush administration allowed the NSA to shoehorn bulk phone
records collection into the Patriot Act. Rand Paul, the Kentucky senator and Republican presidential
candidate who was key to allowing sweeping US surveillance powers to lapse on Sunday night, warned that
NSA lawyers would now make mincemeat of the USA Freedom Act's prohibitions on bulk phone records
collection by taking an expansive view of the bill's definitions, thanks to a pliant, secret surveillance court.
"My
intelligence
committee has taught me to always be vigilant for secret
interpretations of the law and new surveillance techniques that
Congress doesn't know about," Wyden, a member of the intelligence committee, told the
Guardian. "Americans were rightly outraged when they learned that US intelligence agencies
relied on secret law to monitor millions of law-abiding US citizens. The
American people are now on high alert for new secret
interpretations of the law, and intelligence agencies and the Justice
Department would do well to keep that lesson in mind." The USA Freedom
the Obama administration against attempting to unravel NSA reform. "My time on the
Act is supposed to prevent what Wyden calls " secret law ". It contains a provision requiring congressional
notification in the event of a novel legal interpretation presented to the secret Fisa court overseeing
under existing legal authorities after internal controversy or outright exposure. When the
essentially gave NSA the same authority to collect bulk internet metadata that it had ". After a New York
Times story in 2005 revealed the existence of the bulk domestic phone records program, attorneys for the
US Justice Department and NSA argued, with the blessing of the Fisa court, that Section 215 of the Patriot
Act authorized it all along - precisely the contention that the second circuit court of appeals rejected in
NSA
lawyers will undermine surveillance reform. Robert Litt, the senior lawyer for
May. Despite that recent history, veteran intelligence attorneys reacted with scorn to the idea that
director of national intelligence, James Clapper, said during a public appearance last month that creating a
banned bulk surveillance program was " not going to happen ". "The whole notion that NSA is just evilly
determined to read the law in a fashion contrary to its intent is bullshit, of the sort that the Guardian and
the left - but I repeat myself - have fallen in love with. The interpretation of 215 that supported the bulk
collection program was creative but not beyond reason, and it was upheld by many judges," said the
years after the whistleblower Edward Snowden revealed to the Guardian that the Patriot Act was secretly
being used to justify the collection of phone records from millions of Americans. With one exception, the
judges that upheld the interpretation sat on the non-adversarial Fisa court, a body that approves nearly all
government surveillance requests and modifies about a quarter of them substantially. The exception was
reversed by the second circuit court of appeals. Baker, speaking before the Senate voted, predicted: "I
don't think anyone at NSA is going to invest in looking for ways to defy congressional intent if USA
Freedom is adopted." The USA Freedom Act,
similar
power to for the FBI gather domestic internet metadata, obtained
through non-judicial subpoenas called "National Security Letters" , also
collection of Americans' email, text, instant message, internet-protocol and other records. And a
exists in a different, non-expiring part of the Patriot Act. Jameel Jaffer, the deputy legal director of the
ACLU, expressed confidence that the second circuit court of appeals' decision last month would effectively
step into the breach. The panel found that legal authorities permitting the collection of data "relevant" to
an investigation cannot allow the government to gather data in bulk - setting a potentially prohibitive
precedent for other bulk-collection programs. "We don't know what kinds of bulk-collection programs the
conduct
bulk collection of internet metadata, phone records, and financial
records. If similar programs are still in place, the ruling will force the
government to reconsider them, and probably to end them ," said Jaffer,
government still has in place, but in the past it's used authorities other than Section 215 to
whose organization brought the suit that the second circuit considered. Julian Sanchez, a surveillance
expert at the Cato Institute, was more cautious. "The second circuit ruling establishes that a 'relevance'
standard is not completely unlimited - it doesn't cover getting hundreds of millions of people's records,
without any concrete connection to a specific inquiry - but doesn't provide much guidance beyond that as
to where the line is," Sanchez said. "I wouldn't be surprised if the government argued, in secret, that
nearly anything short of that scale is still allowed, nor if the same Fisa court that authorized the bulk
telephone program, in defiance of any common sense reading of the statutory language, went along with
it."
(Adam and Matt are editors for the Associated Press. NYPD Defends Tactics
Over Mosque Spying; Records Reveal New Details On Muslim Surveillance.
http://www.huffingtonpost.com/2012/02/24/nypd-defends-tacticsover_n_1298997.html. Date Accessed- 7/13/15. Anshul Nanda)
NEW YORK -- The New York Police Department targeted Muslim mosques
with tactics normally reserved for criminal organizations, according to
newly obtained police documents that showed police collecting the license plates of
worshippers, monitoring them on surveillance cameras and cataloging
sermons through a network of informants. The documents, obtained by The Associated Press, have
come to light as the NYPD fends off criticism of its monitoring of Muslim
student groups and its cataloging of mosques and Muslim businesses
in nearby Newark, N.J.The NYPD's spokesman, Paul Browne, forcefully defended the legality of
those efforts Thursday, telling reporters that its officers may go wherever the public goes and collect
intelligence, even outside city limits. The new documents, prepared for Police Commissioner Raymond
house in Denmark with an ax. In New York, thousands of miles away, it was a different story. Muslim
leaders preached peace and urged people to protest lawfully. Write letters to politicians, they said. Some
advocated
involved in a decades-old class-action lawsuit against the police department for spying on protesters and
Eisenstein said the documents prove the NYPD has violated those rules. "This is a flat-out violation,"
Eisenstein said. "This is a smoking gun." Browne, the NYPD spokesman, did not discuss specific
investigations Thursday but told reporters that, because of the Handschu case, the NYPD operates under
stricter rules than any other department in the country. He said police do not violate those rules. His
statements were intended to calm a controversy over a 2007 operation in which the NYPD mapped and
photographed all of Newark's mosques and eavesdropped on Muslim businesses. Newark Mayor Cory
Booker said he was never told about the surveillance, which he said offended him. Booker and his police
director accused the NYPD of misleading them by not revealing exactly what they were doing. Had they
known, they said it never would have been permitted. But Browne said Newark police were told before and
enforcement officials either involved in or with direct knowledge of these programs say they did not follow
leads. The officials spoke on condition of anonymity because they were not authorized to discuss the
secret programs. But the documents support their claims. The effort highlights one of the most difficult
aspects of policing in the age of terrorism. Solving crimes isn't enough; police are expected to identify
would-be terrorists and move in before they can attack. There are no universally agreed upon warning
signs for terrorism. Terrorists have used Internet cafes, stayed in hostels, worked out at gyms, visited
travel agencies, attended student groups and prayed at mosques. So the NYPD monitored those areas. In
doing so, they monitored many innocent people as they went about their daily lives. Using plainclothes
officers from the squad known as the Demographics Unit, police swept Muslim neighborhoods and
catalogued the location of mosques. The ethnic makeup of each congregation was logged as police fanned
out across the city and outside their jurisdiction, into suburban Long Island and areas of New Jersey.
"African American, Arab, Pakistani," police wrote beneath the photo of one mosque in Newark.
Investigators looked at mosques as the center of Muslim life. All their connections had to be known. David
potential problems before they bubbled up. Even when it was clear there were no
links to terrorism, the mosque informants gave the NYPD the ability to
"take the pulse" of the community, as Cohen and other managers put it. When New
York Yankees pitcher Cory Lidle and his flight instructor were killed on Oct. 11, 2006, when their small
plane crashed into a Manhattan high-rise apartment, fighter planes were scrambled. Within hours the FBI
and Homeland Security Department said it was an accident. Terrorism was ruled out. Yet for days after the
event, the NYPD's mosque crawlers reported to police about what they heard at sermons and among
worshippers. (View the PDF documents on Danish cartoons, mosque targeting and summaries of plane
crash.) At the Brooklyn Islamic Center, a confidential informant "noted chatter among the regulars
expressing relief and thanks to God that the crash was only an accident and not an act of terrorism," one
report reads. "The worshippers made remarks to the effect that `it better be an accident; we don't need
any more heat,'" an undercover officer reported from the Al-Tawheed Islamic Center in Jersey City, N.J. In
woefully
inadequate, the bill was a net-positive as a first step toward real reform, but one could also
reasonably argue, as Marcy Wheeler has with characteristic insight, that the bill is so larded
with ambiguities and fundamental inadequacies that it would
forestall better options and advocates for real reform should thus
root for its defeat. When pro-privacy members of Congress first unveiled the bill many months
ago, it was actually a good bill: real reform. But the White House worked very hard in partnership with
the House GOPto water that bill down so severely that what the House ended up passing over the
summer did more to strengthen the NSA than rein it in, which caused even the ACLU and EFF to withdraw
their support. The Senate bill rejected last night was basically a middle ground between that original, good
the
most important point from all of this: the last place one should look
to impose limits on the powers of the U.S. government is . . . the
U.S. government. Governments dont walk around trying to figure out
how to limit their own power, and thats particularly true of empires. The
entire system in D.C. is designed at its core to prevent real reform .
This Congress is not going to enact anything resembling fundamental
limits on the NSAs powers of mass surveillance. Even if it somehow did, this
bill and the anti-reform bill passed by the House. * * * * * All of that illustrates what is, to me,
White House would never sign it. Even if all that miraculously happened, the fact that the
U.S. intelligence community and National Security State operates with no
limits and no oversight means theyd easily co-opt the entire reform process.
Thats what happened after the eavesdropping scandals of the mid1970s led to the establishment of congressional intelligence
committees and a special FISA oversight courtthe committees were
instantly captured by putting in charge supreme servants of the intelligence community like Senators
Dianne Feinstein and Chambliss, and Congressmen Mike Rogers and Dutch Ruppersberger, while the
court quickly became a rubber stamp with subservient judges who operate in total secrecy.
that the constitutionally-established institutions control national security policy, but that view is mistaken.
communications of foreign leaders; 26 further insisted that GPS devices may be used to keep track of
certain citizens without probable cause or judicial review27 (until the Supreme Court disapproved28);
continued to investigate individuals and groups under Justice Department guidelines re-written in 2008 to
permit assessments that require no factual basis for FBI agents to conduct secret interviews, plant
informants, and search government and commercial databases;29 stepped up the prosecution of
government whistleblowers who uncovered illegal actions,30 using the 1917 Espionage Act eight times
during his first administration to prosecute leakers (it had been so used only three times in the previous
ninety-two years);31 demanded that businesses turn over personal information about customers in
response to national security letters that require no probable cause and cannot legally be disclosed;32
continued broad National Security Agency (NSA) homeland surveillance;33 seized two months of phone
records of reporters and editors of the Associated Press for more than twenty telephone lines of its offices
and journalists, including their home phones and cellphones, without notice;34 through the NSA, collected
the telephone records of millions of Verizon customers, within the United States and between the United
States and other countries, on an ongoing, daily basis under an order that prohibited Verizon from
revealing the operation;35 and tapped into the central servers of nine leading U.S. internet companies,
extracting audio and video chats, photographs, emails, documents, and connection logs that enable
analysts to track foreign targets and U.S. citizens.36 At least one significant NSA surveillance program,
involving the collection of data on the social connections of U.S. citizens and others located within the
United States, was initiated after the Bush Administration left office.37 These and related policies were
formulated and carried out by numerous high- and mid-level national security officials who served in the
Bush Administration and continued to serve in the Obama Administration.38 Given Senator Obamas
Why
does national security policy remain constant even when one President is
replaced by another who as a candidate repeatedly, forcefully, and eloquently
promised fundamental changes in that policy? I. Bagehots Theory of Dual Institutions A
powerful criticism of such policies before he took office as President, the question,39 then, is this:
disquieting answer is provided by the theory that Walter Bagehot suggested in 1867 to explain the
evolution of the English Constitution.40 While not without critics, his theory has been widely acclaimed and
has generated significant commentary.41 Indeed, it is something of a classic on the subject of institutional
change generally, and it foreshadowed modern organizational theory.42 In brief, Bagehots notion was as
follows. Power in Britain reposed initially in the monarch alone. Over the decades, however, a dual set of
institutions emerged.43 One set comprises the monarchy and the House of Lords.44 These Bagehot called
the dignified institutionsdignified in the sense that they provide a link to the past and excite the public
imagination.45 Through theatrical show, pomp, and historical symbolism, they exercise an emotional hold
on the public mind by evoking the grandeur of ages past.46 They embody memories of greatness. Yet it is
a second, newer set of institutions Britains efficient institutionsthat do the real work of governing.47
These are the House of Commons, the Cabinet, and the Prime Minister.48 As Bagehot put it: [I]ts dignified
parts are very complicated and somewhat imposing, very old and rather venerable; while its efficient part .
. . is decidedly simple and rather modern . . . . Its essence is strong with the strength of modern simplicity;
its exterior is august with the Gothic grandeur of a more imposing age.49 Together these institutions
comprise a disguised republic50 that obscures the massive shift in power that has occurred, which if
widely understood would create a crisis of public confidence.51 This crisis has been averted because the
efficient institutions have been careful to hide where they begin and where the dignified institutions end.52
They do this by ensuring that the dignified institutions continue to partake in at least some real
governance and also by ensuring that the efficient institutions partake in at least some inspiring public
ceremony and ritual.53 This promotes continued public deference to the efficient institutions decisions
a state from the fatal excesses of democracy and to ensure deference to the golden class of efficient
guardians.56 Bagehots theory may have overstated the naivet of Britains citizenry. When he wrote,
probably few Britons believed that Queen Victoria actually governed. Nor is it likely that Prime Minister
Lord Palmerston, let alone 658 members of the House of Commons, could or did consciously and
intentionally conceal from the British public that it was really they who governed. Big groups keep big
secrets poorly. Nonetheless, Bagehots enduring insightthat dual institutions of governance, one public
and the other concealed, evolve side-by-side to maximize both legitimacy and efficiencyis worth
pondering as one possible explanation of why the Obama and Bush national security policies have been
essentially the same. There is no reason in principle why the institutions of Britains juridical offspring, the
United States, ought to be immune from the broader bifurcating forces that have driven British institutional
evolution. As it did in the early days of Britains monarchy,
initially in one set of institutionsthe President, Congress, and the courts. These are Americas
dignified institutions. Later, however, a second institution emerged to safeguard the
nations security. This, Americas efficient institution (actually, as will be
seen, more a network than an institution) consists of the several hundred
executive officials who sit atop the military, intelligence, diplomatic, and law
enforcement departments and agencies that have as their mission the
protection of Americas international and internal security . Large segments of the
public continue to believe that Americas constitutionally established,
dignified institutions are the locus of governmental power ; by promoting that
impression, both sets of institutions maintain public support. But when it comes to defining and protecting
evolved towards a concealed republic, Americas have evolved in the opposite direction, toward greater
centralization, less accountability, and emergent autocracy.
to the Supreme Court. None of this was possible in the absence of Snowden disclosures. For a
provided to the Court, said Chief Judge Reggie B. Walton. The FISC does not
have the capacity to investigate issues of noncompliance, and in that respect
the FISC is in the same position as any other court when it comes to enforcing
[government] compliance with its orders.302 The NSAs own record proved
him correct; an internal NSA audit revealed that it had broken privacy rules or
overstepped its legal authority thousands of times since 2008.303
The judiciary, in short, does not have the foremost predicate needed for
Madisonian equilibrium: a will of its own.304 Whatever the court, judges
normally are able to find what appear to the unschooled to be sensible,
settled grounds for tossing out challenges to the Trumanites projects.
Dismissal of those challenges is couched in arcane doctrine that harks back
to early precedent, invoking implicitly the courts mystical pedigree and an
aura of politics-transcending impartiality. But challenges to the Trumanites
projects regularly get dismissed before the plaintiff ever has a chance to
argue the merits either before the courts or, sometimes more importantly,
the court of public opinion. Try challenging the Trumanites refusal to make
public their budget 305 on the theory that the Constitution does, after all,
require a regular statement and account of the receipts and expenditures of
all public money;306 or the membership of Members of Congress in the
military reserve307 on the theory that the Constitution does, after all,
prohibit Senators and Representatives from holding any office under the
United States;308 or the collection of phone records of the sort given by
Verizon to the NSA on the theory that the law authorizing the collection is
unconstitutional.309 Sorry, no standing, case dismissed.310 Try challenging
the domestic surveillance of civilians by the U.S. Army311 on the theory that
it chills the constitutionally protected right to free assembly,312 or the
Presidents claim that he can go to war without congressional approval313 on
the theory that it is for Congress to declare war.314 Sorry, not ripe for review,
case dismissed.315 Try challenging the introduction of the armed forces into
hostilities in violation of the War Powers Resolution.316 Sorry, political
question, non-justiciable, case dismissed.317 Try challenging the Trumanites
refusal to turn over relevant and material evidence about an Air Force plane
accident that killed three crew members through negligence,318 or about
racial discrimination against CIA employees,319 or about an extraordinary
rendition involving unlawful detention and torture.320 Sorry, state secrets
privilege, case dismissed Sometimes the courts have no plausible way of
avoiding the merits of national security challenges. Still, the Trumanites win.
The courts eighty years ago devised a doctrinethe non-delegation
doctrinethat forbids the delegation of legislative power by Congress to
administrative agencies.322 Since that time it has rarely been enforced, and
never has the Court struck down any delegation of national security authority
to the Trumanite apparatus.323 Rather, judges stretch to find implied
congressional approval of Trumanite initiatives. Congressional silence, as
construed by the courts, constitutes acquiescence.324 Even if that hurdle can
be overcome, the evidence necessary to succeed is difficult to get; as noted
earlier,325 the most expert and informed witnesses all have signed
From the start, the Fisa court was a radical perversion of the judicial
process. It convened in total secrecy and its rulings were classified.
The standard the government had to meet was not the traditional
"probable cause" burden imposed by the Fourth Amendment but a
significantly diluted standard. There was nothing adversarial about
the proceeding: only the Justice Department (DOJ) was permitted to be
present, but not any lawyers for the targets of the eavesdropping request,
who were not notified. Reflecting its utter lack of real independence, the
court itself was housed in the DOJ. And, and was totally predictable, the
court barely ever rejected a government request for eavesdropping.
From its inception, it was the ultimate rubber-stamp court, having
rejected a total of zero government applications - zero - in its first 24
years of existence, while approving many thousands. In its total 34
year history - from 1978 through 2012 - the Fisa court has rejected a
grand total of 11 government applications, while approving more
than 20,000. Despite how obedient and compliant this court always was,
the Bush administration decided in late 2001 that it would have its
National Security Agency (NSA) intercept the calls and emails of
Americans without bothering to obtain the Fisa court approval
required by the criminal law, claiming - with a straight face - that
complying with the law was "too cumbersome" in the age of
Terrorism. Once this lawbreaking was revealed by the New York Times in
late 2005, the response from the DC political class was not to punish the
responsible government officials for their lawbreaking, but rather to enact a
new law (called the Fisa Amendments Act of 2008) that, in essence, simply
legalized the warrantless eavesdropping scheme of the Bush administration.
That new Fisa law vested vast new surveillance powers in the US
government to spy on the communications of Americans without the
annoyance of obtaining permission from the Fisa court. It requires
warrants from the Fisa court only in the narrowest of circumstances:
the ones most susceptible to abuse. Although candidate Obama
pretended to have serious concerns about the law (when he voted for it) and
vowed to rein in its excesses, his administration last year demanded the
renewal of this law with no reforms, and Congress, on a fully bipartisan basis,
complied. One of the provisions of the new Fisa law requires the DOJ annually
to disclose to Congress the number of eavesdropping applications it files and
the number approved and rejected by the Fisa court. Earlier this week, that
disclosure was provided to Senate Majority Leader Harry Reid for the year
2012, and this is what it reported: fisc Public domain Let's repeat that: "of
1,789 applications, the FISA court did not deny any applications in
whole or in part." What fantastic oversight (1789 is, ironically, the year the
Constitution was ratified). The court did "modify" 40 of those
applications - less than 3% - but it approved every single one. The
same was true of 2011, when the DOJ submitted 1,676 applications
and the Fisa court, while modifying 30, "did not deny any
applications in whole, or in part".
told . n49 It
[*1126]
And on large
open questions, like who was responsible for the dissemination of deadly anthrax spores in the nation's capital in midOctober,
the status of the case with little opportunity for the public to probe
the government's claims because information associated with the
investigation remains secret.
The communitarian scholar Amitai Etzioni, for example, has argued that
ID card and new airport screening procedures. n52 It is Etzioni's view that these
public safety and reduce the risk of future terrorist acts . n53 David Brin,
author of The Transparent Society, argued in similar fashion that
Although he could not have known it at the time, Klein 's observations and
subsequent decision to blow the whistle on his employer would soon make
him the star witness in a class-action suit filed against AT&T for its role
in the government's warrantless domestic surveillance program . n8
This action, brought pursuant to a federal statutory provision
authorizing civil suits against any person who engages in
warrantless wiretapping , n9 appeared poised to provide a measure
of relief to those U.S. citizens subjected to such government
surveillance. The FISA Amendments Act of 2008 ("FISAA"), n10
however , an unprecedented law granting retroactive immunity from civil
suit to telecommunications providers like AT&T, effectively eliminates this
claim and others like it . n11 This Note argues that Congress should
amend FISAA to remove its retroactive grant of immunity because it
unconstitutionally infringes on the rights guaranteed in the Fifth Amendment
of the Consitution. First, FISAA violates the Fifth Amendment's Due Process
Clause n12 because it retroactively abrogates [*206] a right of action which
had already accrued to a claimant. Second, FISAA contravenes the Fifth
Amendment's Takings Clause n13 by eliminating accrued tort claims without
providing just compensation.
Carr v. United States, n103 another case rejecting a due process challenge to a
law immunizing a defendant from tort liability, is likewise unpersuasive
because it too involved a case in which the prospective elimination of a cause
of action. The plaintiff in Carr, a federal employee , was injured in a car
accident due to the driving of his colleague, also a federal employee, in 1965.
n104
The plaintiff initiated a civil suit against his co-worker, but the
Generic No Regulations
Fusion centers guarantee profiling will continue post-plan
Constitution Project 12 The Constitution Project (8/15/12, The
Constitution Project, RECOMMENDATIONS FOR FUSION CENTERS,
http://www.constitutionproject.org/pdf/fusioncenterreport.pdf)
2. Reports of Political, Racial and Religious Profiling
Despite these constitutional principles, there have been numerous anecdotal
reports of incidents in which fusion centers have targeted individuals in the
United States for surveillance and investigation based solely on beliefs and
characteristics that are protected by the First and Fourteenth Amendments.
Although federal guidance to fusion centers cautions against profiling, these
incidents demonstrate that significant additional guidance, training and
oversight are crucial to ensure that fusion centers and other law enforcement
agencies do not engage in racial, religious and political profiling.41
Recent reports from across the country bear testament to the
potential for problematic profiling at fusion centers, particularly
regarding bulletins and intelligence reports circulated by fusion
centers. These are a few examples:
The February 2009 Prevention Awareness Bulletin, circulated by a
Texas fusion center, described Muslim lobbying groups as providing
an environment for terrorist organizations to flourish and warned that
the threats to Texas are significant.
The bulletin called on law enforcement officers to report activities such as
Muslim hip hop fashion boutiques, hip hop bands, use of online social
networks, video sharing networks, chat forums and blogs.42
A Missouri-based fusion center issued a February 2009 report describing
support for the presidential campaigns of Ron Paul or third party candidates,
possession of the iconic Dont Tread on Me flag and anti-abortion activism
as signs of membership in domestic terrorist groups.43
The Tennessee Fusion Center listed a letter from the American Civil
Liberties Union (ACLU) to public schools on its online map of
Terrorism Events and Other Suspicious Activity. The letter had
advised schools that holiday celebrations focused exclusively on
Christmas were an unconstitutional government endorsement of
religion.44
The Virginia Fusion Centers 2009 Terrorism Risk Assessment
Report described student groups at Virginias historically black
colleges as potential breeding grounds for terrorism and
characterized the diversity surrounding a military base as a
possible threat.45
Los Angeles (UCLA) Previously, iobhan served as the analyst for domestic
security and intelligence at the Congressional Research Service (CRS). She
spent five years working in homeland security serving as the deputy chief of
the Intelligence Bureau of the New Jersey Office of Homeland Security and
Preparedness (OHSP) (April 2008, Siobhan, Homeland Security Affairs, The
Relationship between the Private Sector and Fusion Centers: Potential Causes
for Concern and Realities, https://www.hsaj.org/articles/134)
Given that fusion centers are entities established by states and
localities to serve their own law enforcement, emergency response, and
homeland security needs, and compounded by the sensitivities
associated with federalism, the federal government is in a difficult
position of balancing its interests and respecting the local nature of
fusion centers. As such, the federal government has been
understandably hesitant to place requirements on fusion centers.
Instead, federal agencies have produced guidelines, which have not
been compulsory, to include the National Strategy for Information
Sharing and Fusion Center Guidelines. 8 While these documents address
some of the tactical and operational concerns related to fusion centers, they
are often vague to a fault and fail to provide the comprehensive
vision for fusion centers as part of the nations homeland security
posture.
Failure to create a consensus on the role, structural requirements,
and responsibilities for fusion centers is apt to increase the
potential for ineffectiveness, which threatens the viability of fusion
centers. If fusion centers fail to demonstrate their worth and strengthen and
augment our nations homeland security efforts, political support and
external agency engagement with these centers is likely to decline.
Moreover, potential civil liberties abuses could damage fusion centers
credibility and undermine their public support. It has rightfully been warned
that even rumors of impropriety and civil liberties abuses associated with a
single fusion center can cause irreparable damage to the reputation of all
fusion centers nationwide. This would be unfortunate given the potential for
fusion centers to provide public safety and homeland security benefits to
both local communities and the nation.
people are not dangerous. White communities are the ones that need
protecting, while the non-white or diverse communities represent some
degree of danger.
This is pure racist crap, and dangerous stuff to have circulating
among the police. The logic of the Fusion Report, if taken seriously,
would lead the State to aggressively infiltrate the student ranks at
Black colleges. They wouldnt discover much in the way of
subversive anything, but it is in the nature of the spy to invent what he cant
find.
Virginias crackpot Fusion Center is one of at least 58 such idiottanks that have sprung up around the country since 9/11, at a cost of
$250 million dollars in public funds. That quarter billion dollar investment has
led to the discovery of a single fact: Some white people are not comfortable,
in general, with diversity, and are still nervous as hell around Black people.
NCRIC, which connects police agencies from Monterey County to the Oregon
border.
"We don't know as much about the TLO program as we should," said Nadia
Kayyali, an activist with the Electronic Frontier Foundation. "We don't know
what their standards are, their policies with respect to limits and privacy."
"We are not the CHP," Matthew Hopkins the deputy commander of Cal STAC
told me. "There are CHP officers in the center, but it's a task force
environment. We assess threats. Transnational crime. Terrorism." Hopkins
said Cal STAC is a fusion center like NCRIC, except that its main focus is
assessing strategic threats to the state of California. Hopkins said he could
not comment on any emails sent by his subordinate because he hasn't seen
them.
"They've built this big network and they have tremendous
resources," said @domainawareness about the involvement of fusion
centers in monitoring the Black Lives Matter protests. "But they don't have
enough to do, so they're using this to watch political protesters. It's
mission creep."
said he is not surprised to see the extensive monitoring of social media by
the police. "I come out of Act Up in NYC," said Petrelis. "The cops came to our
meetings and they picked up all the lit.
Islamaphobia
Fusion centers monitor lawful religious activity
Patel and Price 12 Faiza Patel serves as co-director of the Brennan
Centers Liberty and National Security Program; Michael Price serves as
counsel for the Brennan Centers Liberty and National Security Program
(10/18/12, Faiza Patel, Michael Price, Brennan Center for Justice, Fusion
Centers Need More Rules, Oversight,
https://www.brennancenter.org/analysis/fusion-centers-need-more-rulesoversight)
Instead of looking for terrorist threats, fusion centers were monitoring
lawful political and religious activity. That year, the Virginia Fusion
Center described a Muslim get-outthe-vote campaign as
subversive. In 2009, the North Central Texas Fusion Center
identified lobbying by Muslim groups as a possible threat.
The DHS dismissed these as isolated episodes, but the two-year Senate
investigation found that such tactics were hardly rare. It concluded that
fusion centers routinely produce irrelevant, useless or
inappropriate intelligence that endangers civil liberties.
None of their information has disrupted a single terrorist plot. These
revelations call into question the value of fusion centers as currently
structured. At a minimum, they underscore the need for greater oversight
and clearer rules on what information fusion centers collect and disseminate.
Of course, effective information sharing is critical to national security. But as
the Senate investigation demonstrates, there is little value in distributing
information if it is shoddy, biased or simply irrelevant. When fusion centers
feed such information into the echo chamber of federal databases, they only
compound mistakes and clog the system.
The DHS has failed to create effective mechanisms or incentives for quality
control. Instead, fusion centers collect and share information
according to their individual standards, which vary considerably.
These rules often permit information to flow to federal agencies that
has no connection to criminal activity let alone terrorism. This creates
the risk that intelligence networks will become saturated with poor or
irrelevant information as well as lend undue credibility to inaccurate data.
The Senate report showed that these risks are not just theoretical.
Fusion centers need explicit and consistent rules. The DHS should
ensure that the information the centers collect and distribute is relevant,
useful and constitutional by requiring them to show some reasonable
suspicion that criminal activity is afoot.
This is not a particularly high bar to clear. The reasonable suspicion standard
is familiar to every police officer. The requirement would serve as an
important bulwark against privacy and civil rights violations, but it would also
keep meaningless information out of the system.
Without such well-defined and familiar standards, as the Senate report
demonstrates, fusion centers are left rudderless.
In addition, fusion centers must have active, independent oversight. While
Congressional inquiries are important for exposing problems, the Senate
should not have been the first governmental body to take a critical look at
fusion centers.
At the state and local level, there is often no mechanism to ensure that
fusion centers are generating useful information or complying with
the law. At the federal level, the DHS is responsible for verifying that the
data shared by fusion centers meet certain minimum standards. But the DHS
has delegated this responsibility to the centers themselves and has
not conducted independent audits.
DHS oversight has been so poor that the department could not even
say how much money it has spent on fusion centers, estimating the cost
at somewhere from $289 million to $1.4 billion.
Local Authorities/Citizens
General Local surveillance can break the law without
consequence they can they can cover it up with non
disclosure agreements
Fenton 15 (Justin Fenton, who joined The Sun in 2005, has covered the Baltimore Police
Department since 2008. His work includes an investigation into Cal Ripken Jr.'s minor league
baseball stadium deal with his hometown of Aberdeen and a three-part series chronicling a
ruthless con woman, Baltimore Police used secret technology to track cellphones in thousands
of cases, April 9, 2015, http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-cistingray-case-20150408-story.html#page=1 -JD)
Security" prevented him from discussing the technology. Wessler said the
secrecy is upending the system of checks and balances built into the criminal
justice system. "In Baltimore, they've been using this since 2007, and it's
only been in the last several months that defense attorneys have learned
enough to start asking questions," he said. "Our entire judicial system and
constitution is set up to avoid a 'just trust us' system where the use of
invasive surveillance gear is secret."
But by law, utilities must hand over customer records which include any
billing and payment information, phone numbers and power consumption
data to the DEA without court warrants if drug agents believe the data is
relevant to an investigation. So the utility eventually complied, after losing
a legal fight earlier this month. Meet the administrative subpoena (.pdf): With a federal
officials signature, banks, hospitals, bookstores, telecommunications companies and even utilities
and internet service providers virtually all businesses are required to hand over
sensitive data on individuals or corporations, as long as a government agent
declares the information is relevant to an investigation . Via a wide range of laws,
Congress has authorized the government to bypass the Fourth Amendment
the constitutional guard against unreasonable searches and seizures that requires a probable-cause
warrant signed by a judge. In fact, there are roughly 335 federal statutes on the books (.pdf) passed by
Congress giving dozens upon dozens of federal agencies the power of the administrative subpoena,
according to interviews and government reports. (.pdf) I think this is out of control. What has happened
is, unfortunately, these statutes have been on the books for many, many years and the courts have
federal officials
from a broad spectrum of government agencies issue them hundreds of
thousands of times annually. But none of the agencies are required to
disclose fully how often they utilize them meaning there is little, if any,
oversight of this tactic thats increasingly used in the war on drugs, the war
on terror and, seemingly, the war on Americans constitutional rights to
be free from unreasonable government trespass into their lives. Thats despite
proof that FBI agents given such powers under the Patriot Act quickly began to
abuse them and illegally collected Americans communications records,
including those of reporters. Two scathing reports from the Justice Departments
Inspector General uncovered routine and pervasive illegal use of
administrative subpoenas by FBI anti-terrorism agents given nearly carte
blanche authority to demand records about Americans communications with
no supervision. When the 9th U.S. Circuit Court of Appeals, perhaps the nations most liberal appeals
acquiesced, said Joe Evans, the utilitys attorney. Anecdotal evidence suggests that
court based in San Francisco, ordered Golden Valley to fork over the data earlier this month, the court said
the case was easily decided because the records were relevant to a government drug investigation.
environment, atomic energy, child exploitation, food stamp fraud, medical insurance fraud, terrorism,
securities violations, satellites, seals, student loans, and for breaches of dozens of laws pertaining to fruits,
vegetables, livestock and crops. Not one of the government agencies with some of the broadest
administrative subpoena powers Wired contacted, including the departments of Commerce, Energy,
Agriculture, the Drug Enforcement Administration and the FBI, would voluntarily hand over data detailing
how often they issued administrative subpoenas. The Drug Enforcement Administration obtained the
power under the Comprehensive Drug Abuse Prevention and Control Act of 1970 and is believed to be
among the biggest issuers of administrative subpoenas. Its a tool in the toolbox we have to build a drug
investigation. Obviously, a much, much lower threshold than a search warrant, said Lawrence Payne, a
DEA spokesman, referring to the administrative subpoena generically. Payne declined to discuss individual
cases. Payne said in a telephone interview that no database was kept on the number of administrative
subpoenas the DEA issued. But in 2006, Ava Cooper Davis, the DEAs deputy assistant administrator, told
a congressional hearing, The administrative subpoena must have a DEA case file number, be signed by
the investigators supervisor, and be given a sequential number for recording in a log book or computer
database so that a particular field office can track and account for any administrative subpoenas issued by
that office. After being shown Davis statement, Payne then told Wired to send in a Freedom of
Information Act request, as did some of the local DEA offices we contacted, if they got back to us at all.
Would suggest a FOIA request to see whether you can get a number of administrative subpoenas. Our
databases have changed over the years as far as how things are tracked and we dont have access to
those in public affairs unfortunately, Payne said in an e-mail. He said the agency has never been asked
how many times it issued administrative subpoenas. Amy Baggio, a Portland, Oregon federal public
defender representing drug defendants for a decade, said DEA agents use these like a doctors
prescription pad on their desk. Sometimes, she said, they issue hundreds upon hundreds of them for a
single prosecution often targeting mobile phone records. They
Agencies
Despite a desire to maintain squo policiessecurity
agencies will abide by the law
Glennon 14, Professor of International Law, Fletcher School of Law and
Diplomacy, Tufts University. (1/11/14, Michael J. Glennon, Harvard National
Security Journal, http://harvardnsj.org/wp-content/uploads/2014/01/GlennonFinal.pdf, vol.5)
The Trumanite network is as little inclined to stake out new policies as it is to
abandon old ones. The Trumanites grundnorm is stability, and their ultimate
objective is preservation of the status quo. The status quo embraces not only
American power but the Trumanites own careers, which are steadily elevated
by the conveyer belt on which they sit. Preoccupied as they are with
cascading crises, swamped with memos and email and overwhelmed with
meetings, Trumanites have no time to re-examine the cosmological premises
on which policy is based.179 Their business is reacting, day and night.
Working weekends and evenings is routine; theirs are 24/7 jobs180 that leave
no time for pondering big pictures. They are caught up in tactics;181 larger
ends are for memoirs. Reflecting on the fail[ure] to take an orderly, rational
approach to Vietnam decisionmaking, Robert McNamara wrote that we
faced a blizzard of problems, there were only twenty-four hours a day, and we
often did not have time to think straight. 182 His successors encountered an
equally frenetic environment.183 With the anger, frustration, emotion, and
the mental and physical exhaustion induced in working long hours under
crisis conditions, a pernicious but existing policy gradually comes to be seen
as the least bad choice. The status quo is preserved by minimizing risks,
which means no bold departure from the settled long-term policy trajectory.
Men who have participated in a decision, as James Thomson succinctly put
it, develop a stake in that decision.184 Slow is therefore best. The risk of
embarrassment is lower in continuing a policy someone else initiated than in
sponsoring ones own new one. If the policy fails, the embarrassment is
someone elses.
Trumanites are therefore, above all, team players. They are disinclined to
disagree openly. The further up you go, one prominent organization theorist
put it, the less you can afford to stick out in any one place.185 As one
seasoned adviser said, because there is a real team concept and where
money disputes are not usually the core, radically different views of the
direction to be taken by an administration can cause serious trouble.186 He
advises that a new president should take care that his key officials in foreign
policy all have a roughly similar outlook on the world and Americas place in
it.187 Accordingly, once a policy is final, Trumanites rally readily round it,
however much they might once have disagreed. Dissent shades into
disloyalty and risks marginalization, particularly in a policy group with high
esprit de corps. As Kissinger put it, [s]erving the machine becomes a more
absorbing occupation than defining its purpose.188 Little credit is gained by
advocating for an option that has earlier been rejected. Likelier than not,
ones superior, or his superior, was present at the creation of the policy and
takes pride in its authorship. In government it is always easier to go forward
with a program that does not work, David Halberstam wrote, than to stop it
altogether and admit failure.189 Even those immersed in the policy-making
process are often bewildered by its outcome. The Army chief of staff, Harold
Johnson, could think of no logical rationale to explain the militarys
continuing recommendations for incremental escalation of the U.S. war effort
in Vietnameven though the military had difficulty devising any persuasive
strategy to produce victory.190
The Trumanites commitment is therefore to process rather than outcome. It
is an inevitable defect, Bagehot wrote, that bureaucrats will care more for
routine than for results; or, as Burke put it, that they will think the substance
of business not to be much more important than the forms of it.191 Men so
trained, he believed, must come to think the routine of business not a
means but an endto imagine the elaborate machinery of which they form a
part, and from which they derive their dignity, to be a grand and achieved
result, not a working and changeable instrument.192 At a certain point,
policy within such a system reaches critical mass, and its gravitational pull is
too strong to escape even for political appointees, who are easily coopted.193 The vast bureaucratic mechanisms that emerge develop a
momentum and a vested interest of their own, Kissinger wrote.194 There is
a trend toward autarky.195 There thus emerges, as Goldsmith put it, a
persistence in the interests and outlook of the national security leadership
and especially of the national security bureaucracy.196
Law Enforcement
Local law enforcement has been instructed to keep
surveillance capabilities a secret
Ham 14
The Obama
administration has been quietly advising local police not to disclose
details about surveillance technology they are using to sweep up
basic cellphone data from entire neighborhoods, The Associated Press has learned.
Citing security reasons, the U.S. has intervened in routine state public records
cases and criminal trials regarding use of the technology. This has resulted in
police departments withholding materials or heavily censoring
documents in rare instances when they disclose any about the
purchase and use of such powerful surveillance equipment. Federal
memo. Theyve been actively interfering in public records requests and lawsuits:
involvement in local open records proceedings is unusual. It comes at a time when President Barack Obama has said he
welcomes a debate on government surveillance and called for more transparency about spying in the wake of disclosures
Racist Police
The aff does nothing to solve local surveillance rooted in
racism
APUZZO 15 (Matt Apuzzo is a reporter for the NYT, and Professor at
Georgetown University, and reported for Associated Press and the StandardTimes, Ferguson Police Routinely Violate Rights of Blacks, Justice Dept.
Finds, MARCH 3, 2015, http://www.nytimes.com/2015/03/04/us/justicedepartment-finds-pattern-of-police-bias-and-excessive-force-in-ferguson.html?
_r=0)
Ferguson, Mo., is a third white, but the crime statistics
compiled in the city over the past two years seemed to suggest that
only black people were breaking the law. They accounted for 85 percent of traffic
WASHINGTON
stops, 90 percent of tickets and 93 percent of arrests. In cases like jaywalking, which often hinge on police
the report said, that Ferguson officials circulated racist jokes on their government email accounts. In a
November 2008 email, a city official said Barack Obama would not be president long because what black
man holds a steady job for four years? Another email included a cartoon depicting African-Americans as
There are
serious problems here that cannot be explained away, said a law
enforcement official who has seen the report and spoke on the condition of anonymity because
monkeys. A third described black women having abortions as a way to curb crime.
it had not been released yet. Those findings reinforce what the citys black residents have been saying
publicly since the shooting in August, that the criminal justice system in Ferguson works differently for
blacks and whites. A black motorist who is pulled over is twice as likely to be searched as a white motorist,
even though searches of white drivers are more likely to turn up drugs or other contraband, the report
found. Minor, largely discretionary offenses such as disturbing the peace and jaywalking were brought
almost exclusively against blacks. When whites were charged with these crimes, they were 68 percent
more likely to have their cases dismissed, the Justice Department found. Ive known it all my life about
living out here, Angel Goree, 39, who lives in the apartment complex where Mr. Brown was killed, said
Tuesday by phone. Many such statistics surfaced in the aftermath of Mr. Browns shooting, but the Justice
Department report offers a more complete look at the data than ever before. Federal investigators
conducted hundreds of interviews, reviewed 35,000 pages of police records and analyzed race data
compiled for every police stop. The report will most likely force Ferguson officials to either negotiate a
settlement with the Justice Department or face being sued by it on charges of violating the Constitution.
Under Attorney General Eric H. Holder Jr., the Justice Department has opened more than 20 such
investigations into local police departments and issued tough findings against cities including Newark;
Albuquerque, N.M.; and Cleveland. But the Ferguson case has the highest profile of Mr. Holders tenure
and is among the most closely watched since the Justice Department began such investigations in 1994,
spurred by the police beating of Rodney King in Los Angeles and the riots that followed. While much of the
attention in Ferguson has been on Mr. Browns death, federal officials quickly concluded that the shooting
was simply the spark that ignited years of pent-up tension and animosity in the area. The Justice
Department is expected to issue a separate report Wednesday clearing the police officer, Darren Wilson, of
citizens. It does not give them respect." The LAPD was not the only
contributing factor, but anyone hoping to understand the L.A. riots
had to contend with the city's policing.
Members of an FBI Joint Terrorism Task Force tracked the time and location of
a Black Lives Matter protest last December at the Mall of America in
Bloomington, Minnesota, email obtained by The Intercept shows
The email from David S. Langfellow, a St. Paul police officer and member of
an FBI Joint Terrorism Task Force, informs a fellow task force member from the
Bloomington police that CHS just confirmed the MOA protest I was talking to
you about today, for the 20th of DEC @ 1400 hours. CHS is a law
enforcement acronym for confidential human source.
In other words, these emails revealed that not only was the FBI using its Joint
Terror Task Force an entity that exploded post-9/11 in the name of fighting
terrorism but also using paid informants who were undercover posing as
protestors. Once again, tactics and legal allowances created in the name of
stopping terrorism are being used, without any oversight or public debate,
on entirely peaceful domestic activism.
5. Emails reveal Missouri National Guard viewed Ferguson protestors as
enemy forces.
The most haunting revelation may just be the latest, from CNN:
Missouri National Guards term for Ferguson protesters: Enemy
forces
As the Missouri National Guard prepared to deploy to help quell riots in
Ferguson, Missouri, that raged sporadically last year, the guard used highly
militarized words such as enemy forces and adversaries to refer
to protesters, according to documents obtained by CNN.
CNNs use of military speak aside (quell riots), the report clearly shows
those in charge viewed both rioter and protester alike as enemy combatants
and Ferguson as a war zone.
What makes this, and the other above examples, so pernicious isnt just the
use of anti-terror language, legal authority, and apparatuses on peaceful
domestic activism, its the entirely casual nature with which its done. Beyond
a few PR tweaks, there doesnt seem to be, in any of these internal
documents, an ounce of doubt or hesitation as to whether or not using
systems set up ostensibly to combat al-Qaeda should be so quickly turned on
domestic activism. If all you have is a hammer, as the cliche goes, everything
looks like a nail. Weve given our hyper-militarized police and the FBI the
hammer of coordinated mass surveillance, infiltration, and monitoring in the
name of fighting a phenomenon that kills fewer people a year than bee
stings, It was only a matter of time, therefore, that mass protests would begin
to look like a nail in the eyes of our paranoid, over-equipped security officials.
Islamaphobia
Local Surveillance like the NYPD is Islamaphobic
Kane 13 (Alex Kane is an assistant editor for the news website Mondoweiss, which covers
the IsraelPalestine conflict, and the World section editor at AlterNet. His work has also
appeared in Salon, The Daily Beasts Open Zion blog, Vice, BBC Persian, +972 magazine, the
Electronic Intifada, Extra!, and Common Dreams, Kane is citing the book Enemies Within by
Matt Apuzzo and Adam Goldman, Alex Kane on Enemies Within : Inside the NYPDs Secret
Spying Unit and bin Ladens Final Plot Against America, October 24th, 2013,
http://lareviewofbooks.org/review/raking-the-coals-islamophobia-surveillance-targeting-andthe-nypds-secret-spying-unit)
Like the NYPD, the FBI has used its own power to pressure Muslims into
becoming informants in exchange for help. According to the American Civil
Liberties Union, the FBI has told Muslim-Americans trapped abroad because
of their inclusion on a no-fly list that they could get off easily by spying on
their own communities back home in the US. For all the oversight of the FBI
something the NYPD doesnt have to contend with parts of the federal
agency still view Muslims as targets for spying rather than partners in the
fight against terrorism. Far from an aberration in America's post-9/11
landscape, the NYPD is merely the most extreme example of a law
enforcement apparatus running roughshod over the rights of Muslim
Americans. What's also missing from Apuzzo and Goldmans otherwise
excellent expos of the NYPD is the larger political context in which
the spying took place. The NYPD's logic is Islamophobic at its core:
all Muslims are deemed potential terrorists until they're proven not
to be, an inversion of how law enforcement is supposed to work. Yet
there's little exploration of how Islamophobic discourse from the media and
elected officials contribute to the implementation and acceptance of spying
targeting Muslims. In the same year that Apuzzo and Goldman began
reporting on the NYPD's Intelligence Division, New York Republican
Peter King set up House hearings to probe radicalization among
Muslim-Americans a transparent attempt to cast aspersions on
one particular community. In 2010, anti-Muslim blogger Pamela Geller
worked the national media into a frenzy over what was inaccurately labeled
the Ground Zero mosque. King, Geller and other prominent figures
who demonized Muslims directly after 9/11 opened up space for
institutions with even more power, like the police, to move a
discourse of bigotry into policies of bigotry. In an atmosphere where
anti-Muslim sentiment largely went unchallenged, it's no surprise
that hardly an eye was batted when the NYPD hired CIA officials to
implement an intelligence collection program aimed at law-abiding
citizens. The book presents an undeniably damning portrait of the NYPDs
surveillance operation. Now, its up to the courts and lawmakers to decide
whether these operations are legal or prudent. Three federal lawsuits are
being pursued in reaction to Apuzzo's and Goldman's groundbreaking
investigations. The next New York City mayor will have to grapple with the
question of continuing or halting the spy operations. Judges and elected
officials will have a documented record on which to look back to decide these
weighty questions in the coming months: Enemies Within.
that Muslims are here in the United States to abrogate the US constitution, to overthrow the US
government and replace it with Sharia law, which couldnt be further from the truth. As the facts would
have it, the American Muslim community is a well-educated, well-integrated and looking to continue to do
so in the world. You cant identify an American Muslim radical voice in the United States, whereas if you go
to Europe, you can find people that have a platform that say despicable objectionable things. In the US,
thats just not the case. But we still have in the US, which is really exporting anti-Muslim sentiment to
other parts of the world especially Europe, we still have this fear of Islam that absolutely does give rise to
justify these surveillance policies. GOSZTOLA: So for people who are hearing this debate and they maybe
think its kind of abstract, weve been hearing people talk about collection of the information and then
weve been hearing about how the information is stored. And right now when were talking about the
program under the Patriot Act, the Section 215 program, which is the bulk records collection of the phone
records, its all about whos going to hold it, whos going to store it, and its kind of like were not talking
about the collection. Id like you to talk about why the collection would be really bad and I think a thing you
could address is how the collection of peoples information in Muslim communities in New York is a huge
deal for them and collecting that information is the beginning of the injustice. ABBAS: Absolutely. What we
know a lot about now regarding the NSAs surveillance programs is what is collected, some of the
we
really get to see in more granular detail with the NYPDs specifically
designed Muslim surveillance program is how indiscriminately
collected information gets utilized and what people in positions of
authority that can collect such information think is an appropriate
use of taxpayer dollars. And what we find is that the NYPD thought it was
absolutely worth taxpayer money to send their agents on camping
trips of 19 and 20-year-old college students. They thought it was
absolutely critical for them to map the Muslim community in Newark,
New Jersey, and beyond, identifying every halal grocery store, every
halal restaurant. These things are laughable when we see them up close and in granular detail
searching mechanisms that can be utilized to sift through the collected information. But what
and just like the PCLOB board has determined itself, a board that was authorized by Congress years ago,
that the sifting through everybodys information on an ongoing basis actually is not only objectionable in
itself but its not productive by any criteria. So you have for instance James Clapper arguing that theres
the piece of mind quotients that is part of the benefit of their surveillance program because were
monitoring everything. At the very least we know that nothing is happening. But this mentality that gave
rise to the NSA program is really the objectionable thing that needs to end because it gives rise to not only
The Public
Project Vigilant allows the government to use private
operatives information on citizens
Blain 10
Loz Blain, one of Gizmag's most versatile contributors since 2007. Joining the team as a motorcycle
specialist, he has since covered everything from medical and military technology to aeronautics, music
gear and historical artefacts, 8-2-2010, "Surveillance: two rare glimpses into who's watching you, and
how ," GIZMAG, http://www.gizmag.com/surveillance-whos-watching-and-how/15919//SRawal
Do yourself a favor and check out Glenn Greenwald's article at Salon.com, titled "Project Vigilant and the
News desk and one of the bloggers for On Deadline. Over the years, she has
written about Congress, politics, civil rights and race relations, 9 dead in
shooting at black church in Charleston, S.C., June 19, 2015,
http://www.usatoday.com/story/news/nation/2015/06/17/charleston-southcarolina-shooting/28902017/)
CHARLESTON, S.C. Nine people have died in a shooting at a historic
black church in Charleston, S.C., police said early Thursday morning.
"I do believe this was a hate crime," Police Chief Gregory Mullen said. Eight
people died on the scene at the Emanuel African Methodist Episcopal
Church and one person was pronounced dead at a hospital, Mullen
said. The suspect, who remains on the loose, is a white male about
21 years old, officials said. The shooting took place at about 9 p.m. ET on
want this lingering out there with the public not knowing whats
going on, he said.
Businesses
Businesses sharing citizens information with the
government is a new privacy threat
Fang 15
lack of use
limitations creates yet another loophole for law enforcement to
conduct backdoor searches on Americans, argues a letter sent by a coalition of privacy
organizations, including Free Press Action Fund and New Americas Open Technology Institute. Critics also argue that CISA
would not have prevented the recent spate of high-profile hacking incidents. As the Electronic Frontier Foundations Mark
Jaycox noted in a blog post, the JPMorgan hack occurred because of an un-updated server and prevailing evidence about
breadth of the corporate advocacy campaign to pass CISA, see this letter cosigned by many of the most powerful
AT: Oversight
Oversight failsExecutive and agency interferencekills
the signal
Sullivan 14, Writer for the Associated Press, 3/19/14, Eileen Sullivan,
Huffington Post, CIA-Senate Accusations Complicate Oversight Of
Surveillance Programs, http://www.huffingtonpost.com/2014/03/19/ciasenate-surveillance_n_4995971.html
"We've
set the balance between public disclosure and the need for secrecy by
empowering the congressional intelligence committees," Robert Litt, general
counsel of the office of the director of national intelligence, said Wednesday. Litt was speaking to a
privacy oversight panel that has been reviewing some of the more controversial spy programs revealed
Congress
was kept in the dark about them a tactic designed to thwart congressional
deterrence of the sometimes illegal and often shocking activities carried out
by the "intelligence community". Today, we are seeing a repeat of this professional voyeurism
Investigation (FBI), and the National Security Agency (NSA). Before the Pike Commission,
by our nation's spies, on an unprecedented and pervasive scale. Recently, the US House of
Representatives voted on an amendment offered by Representatives Justin Amash and John Conyers
that would have curbed the NSA's omnipresent and inescapable tactics. Despite furious lobbying by the
intelligence industrial complex and its allies, and four hours of frantic and overwrought briefings by the
NSA's General Keith Alexander, 205 of 422 Representatives voted for the amendment. Though the
amendment barely failed, the vote signaled a clear message to the NSA: we do not trust you. The vote also
conveyed another, more subtle message:
would be the means of keeping each other in their proper places.349 But
the overriding ambition of legislators chosen by a disengaged and
uninformed electorate is not to accumulate power by prescribing policy for
the Trumanites, as Madisons model would otherwise have predicted. Their
overriding ambition is to win reelection, an ambition often inconsistent with
the need to resist encroachments on congressional power. All members of
Congress know that they cannot vote to prescribeor proscribeany policy
for anyone if they lose reelection. It is not that Madison was wrong; it is that
the predicate needed for the Madisonian system to function as intended
civic virtueis missing.
As a result, Trumanite influence permeates the legislative process, often
eclipsing even professional committee staff. Trumanites draft national
security bills that members introduce. They endorse or oppose measures at
hearings and mark-ups. They lobby members, collectively and one-on-one.
Their positions appear on the comparative prints that guide members
through key conference committee deliberations. Sometimes Trumanites draft
the actual language of conference reports. They wait outside the chambers of
the House and Senate during floor debates, ready on-the-spot to provide
members with instant arguments and data to back them up. Opponents
frequently are blind-sided. Much of this activity is removed from the public
eye, leading to the impression that the civics-book lesson is correct; Congress
makes the laws. But the reality is that virtually everything important on which
national security legislation is based originates with or is shaped by the
Trumanite network.
Conversely, congressional influence in the Trumanites decisionmaking
processes is all but nil. The courts have, indeed, told Congress to keep out. In
1983, the Supreme Court invalidated a procedure, called the legislative
veto, which empowered Congress to disapprove of Trumanite arms sales to
foreign nations, military initiatives, and other national security projects.350
The problem with the concept, the Court said, was that it permitted Congress
to disapprove of executive action without the possibility of a presidential
veto.351 A legislative proposal thereafter to give the Senate Intelligence
Committee the power to approve or disapprove covert actions was rejected,
on the grounds that the Court had ruled out such legislative controls.352
Defenders of the process often claim that congressional oversight
nonetheless works.353 How they can know this they do not say.354
Information concerning the oversight committees efficacy remains tightly
held and is seldom available even to members of Congress, let alone the
general public. Today, James Bamford has written, the intelligence
committees are more dedicated to protecting the agencies from budget cuts
than safeguarding the public from their transgressions.355 Authorization too
often is enacted without full knowledge of what is being approved.356 Even
when intelligence activities such as the NSA surveillance are reported,
meaningful scrutiny is generally absent.357 Members of oversight
committees typically are precluded from making available to non-member
AT: Fiat
Even if laws are passed, the NSA will shift resources to
other surveillance
Groll 6/4, Assistant editor for Foreign Policy (6-4-2015, Elias Groll, Foreign
Policy, "Congress May Have Passed the Freedom Act, But Mass Surveillance Is
Alive and Well", http://foreignpolicy.com/2015/06/04/congress-may-havepassed-the-freedom-act-but-mass-surveillance-is-alive-and-well/) EWimsatt
Onee useful way to think about the USA Freedom Act that President Barack
Obama signed into law on Tuesday night is as a lightning-rod for the National
Security Agency. By changing the way the NSA examines domestic phone
records, the agency is now able to make the argument that it has undergone
significant reforms in the aftermath of the Edward Snowden revelations. By
giving up the authority to collect all American phone records, the agency has
paid a small price and gotten rid of a program that it had come to consider
a burden, anyway to keep its most important authorities intact.
stored? If we dont realize how easily our communications might get bundled
with those of non-citizens outside the United States, we might not be worried
about surveillance targeted at them.
But whatever the reason for our myopic focus on Section 215, it has not only
obscured the larger privacy concerns raised by these other authorities, but
also the deeper lessons we should have taken away from Snowdens
revelations. However much we might tolerate, or even embrace, the need for
secret government surveillance programs, it is all-but-inevitable that those
programs will be stretched to and beyond their legal limits. Thats why
its important not only to place substantive limits upon the governments
surveillance authorities, but also to ensure that they are subject to
meaningful external oversight and accountability as well. And thats why the
denouement of Section 215 debate has been so disappointing.
This should have been a conversation not just about the full range of
government surveillance powers, including Executive Order 12333 and the
2008 FISA Amendments Act, but also about the role of the FISA Court and of
congressional oversight in supervising those authorities. Instead, it devolved
into an over-heated debate over an over-emphasized program. Congress has
tended to a paper cut, while it ignored the internal bleeding. Not only does
the expiration of Section 215 have no effect on the substance of other
surveillance authorities, it also has no effect on their oversight and
accountability
.
GCHQ but the case is expected to proceed to the European Court of Human
Rights in Strasbourg later this year.
Left as it is, GCHQ can help to alleviate problems that the NSA will face in
collecting data on US citizens. As part of the Five Eyes intelligence sharing
arrangement that includes the US, UK, Australia, New Zealand and Canada,
GCHQ is perfectly positioned to collect and pass on communications data on
US citizens that the NSA may be prevented from collecting itself.
Whats more, in the wake of the British election, the UK government is
seeking once again to implement a law known as the Snoopers Charter. This
is essentially a data retention bill that would require telecommunications
companies and internet service providers to hold onto the meta data (but not
content) from their customers' emails, phone calls, texts and internet
browsing for 12 months.
Meanwhile, in the weeks following the Charlie Hebdo attacks in Paris, France
moved to introduce significantly strengthened data retention laws. Echoing
the US response to the 9/11 terrorist attacks, French Prime Minister Manuel
Valls suggested that an extraordinary situation calls for extraordinary
measures. This has implications for European negotiations over data
protection laws which have been implemented to shield EU citizens from the
NSA surveillance program.
Questions about the balance between privacy and security are ongoing and
to some extent, they define the times. With increasing intensity,
organisations have been racing to take advantage of personal data trail that
we now generate online. There can be little doubt that this provides
opportunities for use in law enforcement and intelligence.
Its worth remembering, though, that mass surveillance is not carried out by
the NSA or the FBI or even GCHQ. Its carried out by private corporations such
as Google and Facebook. Adequate oversight of the way intelligence agencies
access and use that data is extremely important but we have remarkably
little oversight of the way private companies deal with our data. And in many
cases, they operate with very little transparency themselves.
In February 2015, the Belgian Privacy Commission found that Facebook is
acting in violation of European law. A few months later, Apple CEO Tim
Cook launched an attack against the collection and monetisation of personal
data saying that Silicon Valley businesses are lulling their customers into
complacency about their personal information.
And as for telcos and ISPs, those that dont already retain our data arent
acting out of ethical concerns they dont keep the information because the
expense of storage currently outweighs the commercial value of the data.
So while US citizens have reasons to celebrate about the USA Freedom Act,
they should remember that the NSA has allies around the world who continue
to collect data on both their own citizens and those in the US.
LINKS TO AFFS
DEA
Regardless of what the plan does- agencies i.e. the DEA
will circumvent in order to catch high scale drug lords and
control operations dependent upon surveillance
Heath, 2015
(Brad is an analyst for the News Company USA Today. Full Date: June 3, 2015. Drug wiretaps triple in past
decade; Agents take majority of requests to local prosecutors, judges.
http://www.lexisnexis.com/hottopics/lnacademic/. Date Accessed- 07/15/15. Anshul Nanda)
Privacy advocates expressed concern that the drug agency had expanded its surveillance without going
through internal Justice Department reviews, which often are more demanding than federal law requires.
Wiretaps -- which let the police listen in on phone calls and other electronic communications -- are
considered so sensitive that federal law requires approval from a senior Justice Department official before
agents can even ask a federal court for permission to conduct one. The law imposes no such restriction on
state court wiretaps, even when they are sought by federal agents. "That law exists to make sure that
wiretap authority is not abused, that it's only used when totally appropriate," said Hanni Fakhoury, an
attorney with the Electronic Frontier Foundation. "That's a burden. And if there's a way to get around that
burden, the agents are going to try to get around it." USA TODAY obtained the DEA's wiretapping statistics
under the Freedom of Information Act. The figures include every order authorizing or extending electronic
eavesdropping. Some orders could be counted more than once, if they include the collection of both voice
calls and text messages, for example. DEA Spokesman Joseph Moses said agents' increased use of
wiretaps reflects "the proliferation of communication devices and methods" used by the drug traffickers.
wiretaps are supposed to be the same in both state and federal courts. To tap into communications, police
must persuade prosecutors and a judge that they have probable cause to think that the communications
will contain evidence of a crime, and that they have no other way to build their case. But how judges and
prosecutors interpret those requirements can vary among jurisdictions. "Within Justice, it was a rigorous
standard," said Stephen T'Kach, a former lawyer in the Justice Department office responsible for approving
wiretaps. "In the states, you have 50 different standards for what's going to be enough." Moses said DEA
agents were "making no attempt to circumvent federal legal standards and protections by instead
teams of local police and federal agents. At the same time, he said, some federal prosecutors "may be
unable to support wire intercept investigations due to manpower or other resource considerations," so
agents take their cases to state officials rather than see them dropped. The DEA records do not indicate
which state courts have approved the ramped-up surveillance, but state court records and statistics
compiled by the federal courts' administrative office offer some indications. For example, judges in the
Los Angeles suburb of Riverside, Calif., authorized more wiretaps in 2013 than any other jurisdiction in the
country and significantly more than any federal court, according to records compiled by the Administrative
Office of the U.S. Courts. The number of wiretaps approved there nearly doubled between 2013 and 2014,
to 602, according to California's attorney general. John Hall, a spokesman for Riverside County's district
attorney, said he could not comment on whether the office had approved wiretaps for federal investigators
because the applications often are sealed. Court records there show prosecutors submitted some wiretap
applications at the request of the DEA. State court judges in Buffalo and San Diego also approved DEA
wiretap requests, according to court records. "There was always some heartburn in Justice when DEA was
going into state courts," T'Kach said. That was tempered, he said, because state wiretap laws must include
all of the safeguards federal law requires, and there was no suggestion that evidence gathered through
state-court wires was being thrown out of court later. How often that happens is difficult to measure.
Agents said many of the cases in which state judges authorize wiretaps end up being prosecuted in state
courts, where challenges to wiretap evidence are less common.
Local governements are stopping the war on drugsmeans cant solve through the national level
Ron Paul 14 (Ferguson: The War Comes Home, August 25, 2014 Monday,
L/N- Farmington Daily Times (New Mexico), Accessed 7/16/15, EHS MKS)
America's attention recently turned away from the violence in Iraq and Gaza toward the violence in
Ferguson, Missouri, following the shooting of Michael Brown. While all the facts surrounding the shooing
have yet to come to light, the shock of seeing police using tear gas (a substance banned in warfare), and
other military-style weapons against American citizens including journalists exercising their First
The increasing
use of military equipment by local police is a symptom of growing
authoritarianism, not the cause. The cause is policies that encourage police to see Americans as
Amendment rights, has started a much-needed debate on police militarization.
enemies to subjugate, rather than as citizens to "protect and serve." This attitude is on display not only in
Ferguson, but in the police lockdown following the Boston Marathon bombing and in the Americans killed
and injured in "no-knock" raids conducted by militarized SWAT teams. One particularly tragic victim of
police militarization and the war on drugs is "baby Bounkham." This infant was severely burned and put in
a coma by a flash-burn grenade thrown into his crib by a SWAT team member who burst into the infant's
room looking for methamphetamine. As shocking as the case of baby Bounkham is, no one should be
surprised that empowering police to stop consensual (though perhaps harmful and immoral) activities has
led to a growth of authoritarian attitudes and behaviors among government officials and politicians.
Those wondering why the local police increasingly look and act like
an occupying military force should consider that the drug war was
the justification for the Defense Department's "1033 program,"
which last year gave local police departments almost $450 million
worth of "surplus" military equipment. This included armored
vehicles and grenades like those that were used to maim baby
Bounkham. Today, the war on drugs has been eclipsed by the war on
terror as an all-purpose excuse for expanding the police state. We are all
familiar with how the federal government increased police power after September 11 via the Patriot Act,
TSA, and other Homeland Security programs.
American people must demand that Congress stop facilitating the growth of an authoritarian police state
that threatens their liberty.
Hearne drug arrest scandals, to the millions of dollars wasted through anti-drug trafficking programs,
Texas' drug policies have eroded our liberties and squandered our
tax dollars. But hope is not lost in Texas. While it's true that the state's close proximity to the horrific
"war on drugs"-related violence in Mexico has fueled the adoption of some "we must surrender our liberty
to ensure our security"-type legislation, there have been some positive changes as well. The cost of the
"war on drugs" has forced our legislators to look at alternatives to incarceration for nonviolent drug
offenders, and racial profiling scandals have forced needed changes in state laws governing criminal trials.
While we cannot count on a smart drug policy in Texas anytime soon, a glimmer of hope is finally on the
horizon. For starters, the need to rationally address Texas' massive corrections budget, in part fueled by
the large number of inmates sentenced for nonviolent drug offenses, has led to a number of positive
changes. The call for alternatives to incarceration, in Texas and across the country, has also benefited from
"a growing belief among state lawmakers that prosecuting drug offenders aggressively often fails to treat
their underlying addiction problems and can result in offenders cycling in and out of prisons for years."
Since
But by law, utilities must hand over customer records which include any
billing and payment information, phone numbers and power consumption
data to the DEA without court warrants if drug agents believe the data is
relevant to an investigation. So the utility eventually complied, after losing
a legal fight earlier this month. Meet the administrative subpoena (.pdf): With a federal
officials signature, banks, hospitals, bookstores, telecommunications companies and even utilities
and internet service providers virtually all businesses are required to hand over
sensitive data on individuals or corporations, as long as a government agent
declares the information is relevant to an investigation . Via a wide range of laws,
Congress has authorized the government to bypass the Fourth Amendment
the constitutional guard against unreasonable searches and seizures that requires a probable-cause
warrant signed by a judge. In fact, there are roughly 335 federal statutes on the books (.pdf) passed by
Congress giving dozens upon dozens of federal agencies the power of the administrative subpoena,
according to interviews and government reports. (.pdf) I think this is out of control. What has happened
is, unfortunately, these statutes have been on the books for many, many years and the courts have
federal officials
from a broad spectrum of government agencies issue them hundreds of
thousands of times annually. But none of the agencies are required to
disclose fully how often they utilize them meaning there is little, if any,
oversight of this tactic thats increasingly used in the war on drugs, the war
on terror and, seemingly, the war on Americans constitutional rights to
be free from unreasonable government trespass into their lives. Thats despite
proof that FBI agents given such powers under the Patriot Act quickly began to
abuse them and illegally collected Americans communications records,
including those of reporters. Two scathing reports from the Justice Departments
Inspector General uncovered routine and pervasive illegal use of
administrative subpoenas by FBI anti-terrorism agents given nearly carte
blanche authority to demand records about Americans communications with
no supervision. When the 9th U.S. Circuit Court of Appeals, perhaps the nations most liberal appeals
acquiesced, said Joe Evans, the utilitys attorney. Anecdotal evidence suggests that
court based in San Francisco, ordered Golden Valley to fork over the data earlier this month, the court said
the case was easily decided because the records were relevant to a government drug investigation.
environment, atomic energy, child exploitation, food stamp fraud, medical insurance fraud, terrorism,
securities violations, satellites, seals, student loans, and for breaches of dozens of laws pertaining to fruits,
vegetables, livestock and crops. Not one of the government agencies with some of the broadest
administrative subpoena powers Wired contacted, including the departments of Commerce, Energy,
Agriculture, the Drug Enforcement Administration and the FBI, would voluntarily hand over data detailing
how often they issued administrative subpoenas. The Drug Enforcement Administration obtained the
power under the Comprehensive Drug Abuse Prevention and Control Act of 1970 and is believed to be
among the biggest issuers of administrative subpoenas. Its a tool in the toolbox we have to build a drug
investigation. Obviously, a much, much lower threshold than a search warrant, said Lawrence Payne, a
DEA spokesman, referring to the administrative subpoena generically. Payne declined to discuss individual
cases. Payne said in a telephone interview that no database was kept on the number of administrative
subpoenas the DEA issued. But in 2006, Ava Cooper Davis, the DEAs deputy assistant administrator, told
a congressional hearing, The administrative subpoena must have a DEA case file number, be signed by
the investigators supervisor, and be given a sequential number for recording in a log book or computer
database so that a particular field office can track and account for any administrative subpoenas issued by
that office. After being shown Davis statement, Payne then told Wired to send in a Freedom of
Information Act request, as did some of the local DEA offices we contacted, if they got back to us at all.
Would suggest a FOIA request to see whether you can get a number of administrative subpoenas. Our
databases have changed over the years as far as how things are tracked and we dont have access to
those in public affairs unfortunately, Payne said in an e-mail. He said the agency has never been asked
how many times it issued administrative subpoenas. Amy Baggio, a Portland, Oregon federal public
defender representing drug defendants for a decade, said DEA agents use these like a doctors
prescription pad on their desk. Sometimes, she said, they issue hundreds upon hundreds of them for a
single prosecution often targeting mobile phone records. They
nor discuss the existence and utilization of SOD provided data and to further
omit the SODs involvement from investigative reports, affidavits,
discussions with prosecutors and courtroom testimony. Agents are instructed
to then use normal investigative techniques to recreate the information
provided by SOD. The last line of the directive is particularly disturbing. By
instructing agents to use normal investigative techniques to recreate the
information provided by SOD, law enforcement is being instructed to flat out
lie when disclosing how they came across the tips or other information
provided by SOD leading to an arrest. These agents are directed to give
substance to the lie by fabricating a false source or method utilized to gain
information leading to an arrest. In law enforcement parlance, it is called
parallel construction. Accordingly to a former federal agent, the SOD tip
system works as follows: Youd be told only, Be at a certain truck stop at a
certain time and look for a certain vehicle. And so wed alert the state police
to find an excuse to stop that vehicle, and then have a drug dog search it.
When the SOD tip leads to an arrest, the agents then pretend that the drug
bust was the surprise result of pulling the vehicle over as a routine traffic
stop. So secretive is the program, SOD requires that agents lie to the judges,
prosecuting attorneys and defense attorneys involved in a trial of a defendant
busted as a result of SOD surveillancea complete and clear violation of
every Americans right to due process, even when that American is a low-life
drug dealer.
surveillance in the African-American community plays an important role in the debate around spying today
and in the calls for a congressional investigation into that surveillance. Days after the first NSA leaks
emerged last June, EFF called for a new Church Committee. We mentioned that Dr. Martin Luther King, Jr.,
was one of the targets of the very surveillance that eventually led to the formation of the first Church
Committee. This Black History Month, we should remember the many African-American activists who were
targeted by intelligence agencies. Their stories serve as cautionary tales for the expanding surveillance
state. The latest revelations about surveillance are only the most recent in a string of periodic public
Party. The agency also worked with police departments to harass local branches of the Party through raids
and vehicle stops. In one of the most disturbing examples of this, the FBI provided information to the
Chicago Police Department that aided in a raid on BPP leader Fred Hamptons apartment. The raid ended
eerily prescient statement, Senator Walter Mondale said he was concerned that the NSA could be used by
President 'A' in the future to spy upon the American people, to chill and interrupt political dissent.
Mann act
TVPA isnt going away- means the aff cant access
solvency
DONNA M. HUGHES 08
(Protecting trafficking victims, March 12, 2008
8:00 AM, http://www.nationalreview.com/article/223881/wilberforce-can-freeagain-donna-m-hughes, Accessed 7/16/15, EHS MKS)
Protecting trafficking victims. The nations most recent political sex scandal New York governor Eliot
Spitzers involvement with a high-end call-girl ring will doubtless provide much fodder for the late-night
comedy shows. But American prostitution is no laughing matter: The victimization of women and girls, and
sometimes men and boys, by pimps has been widely recognized throughout U.S. history. In the mid-1800s,
Congress passed a law criminalizing the importation of aliens for prostitution. In the early 1900s as part of
the first international movement against sex trafficking, Congress passed the Mann Act, a law criminalizing
Congress
passed the Trafficking Victims Protection Act (TVPA), making the pimping of
persons under the age of 18, or pimping by means of fraud, force, or
coercion, a serious federal felony. (Pimping is an informal term for what the
TVPA 2000 calls sex trafficking: The recruitment, harboring, transportation, provision, or
the act of transporting persons across state lines for the purpose of prostitution. In 2000,
obtaining of a person for the purpose of a commercial sex act.) And in 2006, the Adam Walsh Child
Protection and Safety Act created new federal anti-trafficking crimes and enhanced the penalties of the
Mann Act. In December, the House of Representatives passed the William Wilberforce Trafficking Victims
Protection Reauthorization Act by a vote of 405 to 2.
two levels of sex trafficking: sex trafficking (without force, fraud, and coercion) and aggravated sex
trafficking (with force, fraud, and coercion). Also, the Wilberforce Act will change the older Mann Act
statute by eliminating its transportation-of-victims requirement and substituting in the TVPAs in or
affecting interstate or foreign commerce requirement. When transportation across state lines is not
provable, prosecutors will no longer need to show brutality or acts of fraud, force, or coercion such acts
will increase the punishment of a pimp rather than being the sole basis of conviction. In addition, one of
the biggest challenges to prosecuting cases of sex trafficking is getting victims to cooperate or testify
against brutal pimps. These reforms will make it possible to bring multi-defendant cases against pimps.
THE MESSAGE WE SEND When sex trafficking is a federal crime only when there is proof of force, fraud,
coercion, or the exploitation of a minor, this encourages states in the U.S. and foreign governments to
require high standards of proof for trafficking convictions. This type of law is supported by those favoring
women and men in prostitution is allowed as long as the victim cant prove that force, fraud, or coercion
was used or the victim is not underage. By defining prostitute recruitment as sex trafficking, the
Wilberforce Act will send a message that all pimping-related activities are illegal. In addition, the
Wilberforce Act will create a new standard for the evaluation of countries performance in combating sex
trafficking. Called the demand standard, countries will be assessed on whether they are making efforts
to reduce the demand for commercial sexual activities. The Wilberforce Act doesnt introduce radical new
laws, but rather pulls together a century and a half of laws and approaches. It sets a new standard for the
U.S. and a model for the world to oppose all forms of pimping. A broad coalition of groups recognizes the
girls and women are watched secretly, without their consent, for male
sexual pleasure, much more than most care to think about or admit. From girls
and women who are being abused by spouses or fathers to women who have no idea
at all who is watching them. It happens to women in their apartments; in
counseling after it was revealed that male student had hidden video cameras
in school bathrooms. He had more than 1,500 recordings. Last month, a man
in a caf secretly set up a camera in a neighborhood restaurant's bathroom.
Yesterday, it was a man arrested for secretly filming "people" on tanning beds in a
Planet Fitness gym. Taken to another arena, what do people think non-
consensual, invasive ultrasounds legally mandated for women by maledominated state legislatures are? These are pictures of women's bodies,
Women are surveyed in everyday life all the timerepealing the MANN act will do nothing to overcome the
idea of the male gaze
AUTUMN WHITEFIELD-MADRANO 13 (Ill Be Watching You: NSA
Surveillance and the Male Gaze, June 18, 2013,
http://thenewinquiry.com/blogs/the-beheld/ill-be-watching-you-nsasurveillance-and-the-male-gaze/, Accessed 7/17/15, EHS MKS)
I would give readers a quick 101 on the NSA surveillance scandal before I go on to make my point, but the
fact is, Ive got no facts. I saw the headlines, heard the occasional bits of cocktail party buzz, and saw a
flurry of blog postswhich I skimmed at best, or skipped altogethercrop up in my RSS feed. And then, I
shrugged. Apathy doesnt seem like the greatest reason to tune out of something that, intellectually and
politically speaking, enrages meor at least should enrage me, if rage were a rational response that arose
upon provocation of our most deeply held beliefs. But there it is: In a country whose founding principles
include freedom of expression, learning that the government iswhat, reading our e-mails? listening to our
phone conversations?this citizens response is meh. The longer this story has remained in the news, the
made all the more uncomfortable when coupled with one of my favorite passages from John Bergers Ways
Women watch themselves being looked at. This determines not only most relations between men and
housing your internal surveyor, you might not be terribly surprised when you find that there are external
surveyors you hadnt considered. Not that women walk through our days consciously considering that men
might be looking at us. In fact, thats part of the point: Being seen becomes such a default part of the way
you operate that it ceases to be something you need to be actively aware of. Not that the cold slap of Hey,
baby is ever so far away as to keep women truly unaware of the public dynamic surrounding gender. In
urban areas (and plenty of non-urban areas too), we deal with street harassment so frequently that it
The
triumphant joke of the tinfoil-hat crowd rings frightfully true in the light of the
NSA activitiesjust because youre paranoid, doesnt mean theyre not after
youis yesterdays news to women. Am I actually being looked atspecifically by men, and
begins to feel difficult to overestimate just how much were actually being observed by passersby.
specifically as a womanevery time I leave my house? Probably not. But the expectation or possibility of
being seen has been there as long as I can remember. And the minute I think Ive slipped out of the
observation zoneby wearing a dowdy outfit that conceals my body, or simply by being in my own world
for a momenttheres a catcall there to remind me that even if Im not paranoid, that doesnt mean
theyrenot afterme (I hope!). But there, watching. Im trying to think of how Id process the news that our
for the people, by the people government can invade our privacy anytime it damn well pleases, if I
hadnt ever internalized the sensation of being observed. I imagine Id be more surprised, for starters, but I
also wonder if Im asking the wrong question here. As humans, we love little more than to watch each
Men are
observed toodifferently than women are, but its not like men are entirely
unaware that theyre being seen by others. Here I turn to Robin James, Ph.D., associate
other in a variety of ways (is TV anything other than controlled people-watching?).
professor of philosophy at UNC Charlotte: Im thinking that (properly masculine, i.e. white, etc.) men
experience surveillance in profoundly enabling ways, she wrote to me when I asked her to expand on a
Twitter exchange we had. [B]eing watched by someone who you know is your equal (that is, you watch
them, they watch you in return) is what reaffirms both of your statuses as equals, as subjects, etc. If your
gaze isnt returned in kind, that means youre not considered an equal, that youre not seen as a real
from objectification, whether it comes from others or internally as a result of being objectified by others:
Depression. Limiting ones social presence. Temporarily lowered cognitive functioning. (Of course, there are
also suggestions that self-objectification may boost some womens well-being. Another day, another post.)
When I look at these effects and compare them with where Im at intellectually about the NSA privacy
invasionsa shrinking of oneself versus righteous outward angerIm troubled. Would I feel more
righteous anger if I hadnt learned to absorb, possibly to my personal detriment, the effects of
objectification and tacitly accepted surveillance as something that just happens? And more importantly:
Has the collective energy of women been siphoned into this realm, leaving us less energy for, as they say,
leaning in? Im not saying that just because women might be used to being watched by men means that
were inherently blas about being watched by governmental bodies; in fact, Im guessing some women
are more outraged than they would be if they were male, even if theyre not directly connecting that
outrage with womanhood. (Also, I dont believe the male gaze to be wholly responsible for my indifferent
reaction here; its just the one thats relevant.) Lets also not forget that 56% of Americans deem phone
surveillance as an acceptable counterterrorism measure. And Im certainly not saying that we shouldnt be
Zero day
BACKDOOR CARDS WORK FOR THIS TOO
Only businesses can solvegovernment solutions take too
long
Spink Adrian Spink No date (What are Java Zero-Day Attacks and How Can
They Affect You?, NO DATE, http://www.findtheedge.com/general/what-arejava-zero-day-attacks-and-how-can-they-affect-you, accessed 7/16/15)
Secuity-Measures-NeededRecent months have seen a procession of Java zeroday attacks impact a wide variety of organisations. Simply put, zero-day
attacks occur when a problem with a piece of software is discovered and
exploited before the developer is even aware that there is an issue. Facebook,
Apple, Twitter and Microsoft have all recently disclosed compromised
computers, and many more firms have been hit but not gone public with the
information. The very nature of a zero-day attack means your systems could
be vulnerable in the period between the exploit being identified and the
patch being deployed by Oracle, the owners of Java. Its unlikely weve seen
the last of these exploits; Javas rich programming language wasnt designed
for a hostile Internet environment, so its likely more vulnerabilities will be
uncovered. There are also many other products running on our desktops that
could be susceptible to this style of attack, as has been shown by the recent
Internet Explorer zero-day issues. Traditional anti-virus and perimeter security
techniques do not offer complete protection for this reason, organisations
need to review their risk exposure, and plan their responses accordingly. So
what practical advice can we offer: 1. Remove Java? While many security
experts recommend the seemingly straightforward solution of disabling or
removing Java from browsers, but this is not always practical. Some firms will
be dependent on Java to run both internal and third party applications. For
large organisations, the cost and logistics of ensuring Java is disabled for
every browser may be prohibitive. Many browsers now offer the ability to
control how Java is handled, however, and the latest version of Java has
enhancements to the control panel settings that may offer you a solution with
a little tweaking. 2. Maximise your end-point security Anti-virus solutions will
protect you from the most common exploits once they have been identified,
but its even more important to ensure: You have full coverage across all your
end-points Security updates are installed on all endpoints quickly You have
zero-day and Host Intrusion Prevention features enabled 3. User Awareness
Educating your users about the potential risks, and how to avoid phishing
attacks, is a great way to reduce your exposure. 4. Protect your critical
information assets In the longer term, advanced persistent threats are likely
to increase. Firms need to ask themselves while making the assumption
that their network will be breached at some point in the future what
additional measures could be taken to protect critical information assets in
advance, and limit damage. Summary Zero day attacks are inevitable, so
buisnessess need to take steps to protect their data and systems well ahead
of time. Its tempting to put off thinking about these issues, but this is only
NSA
Reforms fail the NSA will circumvent
Greenwald 14 (Glenn, lawyer, journalist and author he founded the
Intercept and has contributed to Salon and the Guardian, named by Foreign
Policy as one of the Top 100 Global Thinkers of 2013, CONGRESS IS
IRRELEVANT ON MASS SURVEILLANCE. HERES WHAT MATTERS INSTEAD,
https://firstlook.org/theintercept/2014/11/19/irrelevance-u-s-congressstopping-nsas-mass-surveillance/)
All of that illustrates what is, to me, the most important point from all of this:
the last place one should look to impose limits on the powers of the U.S.
government is . . . the U.S. government . Governments dont walk around
trying to figure out how to limit their own power, and thats particularly
true of empires. The entire system in D.C. is designed at its core to
prevent real reform . This Congress is not going to enact anything
resembling fundamental limits on the NSAs powers of mass surveillance.
Even if it somehow did, this White House would never sign it. Even if all
that miraculously happened, the fact that the U.S. intelligence community
and National Security State operates with no limits and no oversight
means theyd easily co-opt the entire reform process . Thats what
happened after the eavesdropping scandals of the mid-1970s led to the
establishment of congressional intelligence committees and a special FISA
oversight courtthe committees were instantly captured by putting in
charge supreme servants of the intelligence community like Senators Dianne
Feinstein and Chambliss, and Congressmen Mike Rogers and Dutch
Ruppersberger, while the court quickly became a rubber stamp with
subservient judges who operate in total secrecy. Ever since the Snowden
reporting began and public opinion (in both the U.S. and globally) began
radically changing, the White Houses strategy has been obvious. Its vintage
Obama: Enact something that is called reform so that he can give a
pretty speech telling the world that he heard and responded to their concerns
but that in actuality changes almost nothing, thus strengthening the
very system he can pretend he changed. Thats the same tactic as
Silicon Valley, which also supported this bill: Be able to point to something
called reform so they can trick hundreds of millions of current and future
users around the world into believing that their communications are now safe
if they use Facebook, Google, Skype and the rest. In pretty much every
interview Ive done over the last year, Ive been asked why there havent
been significant changes from all the disclosures. I vehemently disagree with
the premise of the question, which equates U.S. legislative changes with
meaningful changes. But it has been clear from the start that U.S.
legislation is not going to impose meaningful limitations on the
NSAs powers of mass surveillance, at least not fundamentally.
read so far are careful to specify that surveillance tech is only for legal data
collection, "legal" is a very fluid term worldwide. Governments have
increasingly relied on data collection to hold onto power, and as our
own Meghan Neal detailed a few months ago, the surveillance needs of
dictators continue to be served by American companies despite embargoes.
During the Arab Spring, surveillance and internet control were major
tools used by governments to try to control dissent; most recently,
Sudan hit the internet kill switch in order to limit the spread of antigovernment info online. The flip side of that control is preemptive
surveillance and data collection. And while data-driven law enforcement
is currently in vogue in the Westa privacy battle all its ownthe
capabilities available on the thriving private surveillance market are
also available for regimes worldwide to crush encroachment in their
power. There's a very good reason that the UN High Commissioner called
privacy a human right earlier this year: The vast tools available to people
with enough money and network access are more capable of accessing
private information than ever before. And unless local laws say otherwise
what laws that haven't been circumvented or changed, that isthere's no
oversight of what someone might monitor. "There is a culture of impunity
permeating across the private surveillance market, given that there
are no strict export controls on the sale of this technology, as there
on the sale of conventional weapons," Matthew Rice, a research consultant
with Privacy International, told The Guardian. "This market profits off the
suffering of people around the world, yet it lacks any sort of effective
oversight or accountability. So when a company advertises that its
technology can rip phone call content straight off a cell network, it's doing so
with a sense of agnosticism. A firm might not sell tech to some guy off the
street, but when a guy like Moammar Gadhafi wants to pick up a bunch of
surveillance tech, foreign markets say yes. Again, aside from economic
embargoes and the like, the use of such technology is regulated by local
laws, and spying on political rivals or everyday folks may be legal, depending
on where it's used. It's a nice sentiment for firms looking to profit off of
surveillance. But for private citizens worldwide, and especially those living
under the most oppressive governments, the elimination of privacy is surely a
dangerous trend.
One useful way to think about the USA Freedom Act that President Barack Obama signed into law on Tuesday night is as a
There is no evidence of outright wrongdoing in Thursdays reports, but they signal another expansion of the NSAs
authorities to collect data on the Internet. Sen. Patrick Leahy, the Vermont Democrat and ranking member of the Judiciary
Committee, said Thursdays report underscores the critical importance of placing reasonable and commonsense limits on
government surveillance in order to protect the privacy of Americans and that Congress should have an open,
transparent and honest debate about how to protect both our national security and our privacy. Jonathan Mayer, a
cybersecurity researcher, told the Times that FBI use of NSA data to combat cybercrime threatens to conflate the latters
intelligence gathering role with the formers law enforcement mandate. Thats a major policy decision about how to
structure cybersecurity in the U.S. and not a conversation that has been had in public, he said. In short, the Times report,
the world to another, and when that traffic arrives in the United States, the NSA is there to have a look at it. Section 702
of the FISA Amendments Act governs parts of the NSAs relationship with U.S. telecommunications companies, and it is
through such companies that the NSA is able to access enormous troves of data for terrorism and foreign intelligence
purposes.
major reform of US surveillance powers in a generation looked likely to be a foregone conclusion on Monday. The USA
Freedom Act, a bill banning the NSA from collecting US phone data in bulk and compelling disclosure of any novel legal
arguments for widespread surveillance before a secret court, has already been passed by the House of Representatives
and on Sunday night the Senate voted 77 to 17 to proceed to debate on it. Between that bill and a landmark recent ruling
from a federal appeals court that rejected a longstanding government justification for bulk surveillance, civil libertarians
think they stand a chance at stopping attempts by intelligence lawyers to undermine reform in secret. Attorneys for the
intelligence agencies react scornfully to the suggestion that they will stretch their authorities to the breaking point .
Yet
reformers remember that such legal tactics during the George W
Bush administration allowed the NSA to shoehorn bulk phone
records collection into the Patriot Act. Rand Paul, the Kentucky
senator and Republican presidential candidate who was key to
allowing sweeping US surveillance powers to lapse on Sunday night,
warned that NSA lawyers would now make mincemeat of the USA
Freedom Acts prohibitions on bulk phone records collection by
taking an expansive view of the bills definitions, thanks to a pliant, secret
surveillance court. My fear, though, is that the people who interpret this work at a place known as the
rubber stamp factory, the Fisa [court], Paul said on the Senate floor on Sunday. Pauls Democratic ally, Senator Ron
Wyden, warned the intelligence agencies and the Obama administration against attempting to unravel NSA reform. My
No Enforcement/Legal Redress
No enforcement in prisonssexual violence allowed to
continue
Buchanan 07
Kim Shayo Buchanan, Associate professor of Law and Gender Studies at USC Gould
School of Law who specializes in constitutional law, international and comparative
human rights law, prisoners rights, reproductive rights, race, gender and sexuality,
Impunity: Sexual Abuse in Womens Prisons, HARVARD LAW REVIEW,
http://www.law.harvard.edu/students/orgs/crcl/vol42_1/buchanan.pdf, Vol 42, 2007,
pp. 44-48//SRawal
about prisoner girlfriends and guard boyfriends. Women prisoners become pregnant when the only men they have
had contact with are guards and prison employees; often they are sent to solitary connementknown as the holeas
punishment for having sexual contact with guards or for getting pregnant. 4
were supposed to have their backs to the prisoners during the videotaping. As the judge pointed out, If youre going to
Milton, an attorney for the women, said of the jail, in a telephone interview, No one couldnt identify a single place in the
the policies at
Chicopee certainly didnt look so progressive. She explained that Seg or the
Segregation Unit was multi-function; in other words, it was used
to isolate women with behavioral issues and supposedly to prevent
those with mental health issues from suicide. Baggett said to me, imagine being a
country that videotaped strip searches. Baggett, who is now living in Alabama, said that to her,
woman who had just lost her daughter or someone who had been raped a few hours before her arrestboth cases which
occurred during her jail stay in Segand imagine how distraught you might be. Then imagine a jail that decides to handle
such women with strip searches after they have been transferred from general population to Seg. From Think Progress,
These searches required a woman to run her fingers through her hair, remove dentures if she wore them, raise both
arms, lift her breasts, lift her stomach for visual inspection if she had a large mid-section, and remove any tampon or pad
if she were menstruating. She was then required to turn around, bend over, spread her buttocks, and cough. Then
because the prisoner never tried to caught [the guards] off, scream, or yell). 70 Harvard Civil Rights-Civil Liberties Law
Review [Vol. 42 do so unless they believe the defendant has acted with such malice that punitive damages are
appropriate.203 Even when prisoners are able to prove that they have been raped, juries may tend to lowball prisoners
nonwage damages as an expression of disregard for them.204 For example, in Morris v. Eversley, 205 a jury convicted a
jury awarded $1,000 for compensatory damages and $15,000 for punitive damages. The judge, apparently frustrated by
$100,000 to $200,000. Ellen M. Bublick, Tort Suits Filed by Rape and Sexual Assault Victims in Civil As Bublick observes,
[i]nadequate damage awards may be a particular issue when the victim and the assailant are acquaintances or
congressional concern about the dramatic increase in prisoner litigation between 1980 and the mid-1990san increase
that, as commentators have noted, coincided with a dramatic increase in the incarcerated population in the United
which a prisoner complained that the prison served chunky, rather than creamy, peanut butter.211 Numerous other
frivolous suits, such as claims arising from an unsatisfactory prison haircut and a desire for a particular brand of sneakers,
were also used during the PLRA debates as examples of the pressing need for special barriers to prisoner litigation.212
During the congressional debates, Senator Joe Biden pointed out that the PLRA would erect too many roadblocks to
meritorious prison lawsuits.213 He urged Congress not to lose sight of the fact that some of these lawsuits have merit
some prisoners rights are violated.214 Senator Biden pointed out that hundreds of women prisoners had been sexually
abused by dozens of guards, openly and for years, in Washington, D.C., prisons. He noted that this practice changed only
after their class action was successful.215 Despite Senator Bidens warnings, no amendment was adopted to protect the
right of prisoners to sue in the event of sexual abuse by guards. The PLRA is a status-based law that excludes almost all
prisoner claims from the courts.216 Like historical doctrines designed to deter rape average sentence given to Black
womens assailants is two years. The average sentence given to white womens assailants is ten years. Crenshaw, Sexual
Harassment, supra note 44, at 1471. complainants, black witnesses, and married women from bringing white men to
court, the PLRA establishes unique hurdles that are nearly impossible for prisoner plaintiffs to overcome. The most
damaging hurdle imposed by the PLRA is its grievanceexhaustion requirement.217 Like the marital privacy doctrine that
excluded wives claims from the courts in order to protect family government,218 this provision values the peace of
The grievance-exhaustion
provision requires inmates to exhaust internal prison grievance
procedures before they may bring their claims to an outside
authority, even if the procedures are complex, inefcient, unfair, or
incapable of offering a remedy for the prisoners claim.219 If the
prisoner has failed to do so, the litigation is dismissed . Thus a prison
is virtually insulated from prisoner litigation to the extent that its
grievance process is complex and time-consuming, its deadlines for
ling a grievance are brief,220 and the threat of retaliation deters
prisoners from using the process at all. In practice the grievance-exhaustion requirement
mind of those in power over the safety of those who are in their custody.
invites technical mistakes resulting in inadvertent noncompliance with the exhaustion requirement, and bar[s] litigants
from court because of their ignorance and uncounselled procedural errors.221 Unreasonably quick grievance deadlines
evoke the fresh complaint requirements of traditional rape doctrine.222 In New York, for example, the Department of
Corrections imposes a fourteen-day limit for ling any prisoner grievance, unless the grievance authority determines that
a quid pro quo for sex, or groped her or if she did not think to preserve a DNA sample during her rapethe grievance
even further by requiring that the physical injury be at least as serious as an injury that would meet the Eighth
example, the text of this provision appears to bar claims that a prisoner was forced to perform or submit to oral sex, was
digitally penetrated, or was coerced into sexual compliance through threats or inducements without a beating.
Drones
No Enforcement
***There is no enforcement of drone regulation
Kinane 15
Ed Kinane, activist with the Upstate Drone Action, 2-17-2015, "Concerns over
domestic drones: spying, civil liberties abuse & accidents," RT English,
http://www.rt.com/op-edge/233043-commercial-drones-intelligence-agenciesabuse//SRawal
I think we should be very concerned about the abuse of the drones for
surveillance. Already we have US intelligence agencies like the FBI, NSA
gathering enormous amounts of surveillance data with very little control over
them. And weve seen that our intelligence agencies dont necessarily
respect out laws regarding these matters. Trying to enforce regulations is
very difficult especially when you go up against the NSA, the National
Security Administration, or the FBI, or Homeland Security. There is very little
in the way of enforcement. The FAA, the Federal Aviation Administration, is
already stretched very thin. And its not their function to be enforcing the
rules and regulations, and they dont have the means to do it. It is a very
risky situation were going intoWe would have many drones in the air
probably... how do we know which ones are doing what? It would give very
good cover to spy drones because were just used to spy drones because
were just used to seeing drones in the air. So we dont think of it when we
see drones that really are performing functions that are very inappropriate for
them.
Bury told Hood the FAA considered the issue but doesn't have a
strong regulatory interest. From [the FAAs] perspective, if
installation of a weapon, camera, whatever if safe operation is not
implicated, we dont really have an interest, he said.
prey.
Hair color,
bullet wounds, even the weapon were not visible in the series of
pictures taken from an airplane flying two miles above . But what the images
revealed to a degree impossible just a few years ago was location, mapped over time .
Second by second, they showed a gang assembling, blocking off access
points, sending the shooter to meet his target and taking flight after
the body hit the pavement. When the report reached police, it included a picture of
the blue stucco building into which the killer ultimately retreated , at
last beyond the view of the powerful camera overhead. Ive witnessed 34 of these, said Ross McNutt, the genial
president of Persistent Surveillance Systems, which collected the images of the killing in Ciudad Jurez, Mexico, from a
specially outfitted Cessna. Its like opening up a murder mystery in the middle, and you need to figure out what
happened before and after. As Americans have grown increasingly comfortable with traditional surveillance cameras ,
a
new, far more powerful generation is being quietly deployed that
can track every vehicle and person across an area the size of a small
city, for several hours at a time. Although these cameras cant read license
plates or see faces, they provide such a wealth of data that police,
businesses and even private individuals can use them to help
identify people and track their movements. Already, the cameras have been flown above
major public events such as the Ohio political rally where Sen. John McCain (R-Ariz.) named Sarah Palin as his running
mate in 2008, McNutt said. Theyve been flown above Baltimore; Philadelphia; Compton, Calif.; and Dayton in
demonstrations for police. Theyve also been used for traffic impact studies, for security at NASCAR races and at the
request of a Mexican politician, who commissioned the flights over Ciudad Jurez .
Defense contractors
are developing similar technology for the military, but its potential
for civilian use is raising novel civil liberties concerns. In Dayton,
where Persistent Surveillance Systems is based, city officials balked
last year when police considered paying for 200 hours of flights, in
part because of privacy complaints.
in real time," reported The Center for Investigative Reporting (CIR). "Imagine Google Earth with a rewind button and the
ability to play back the movement of cars and people as they scurry about the city." Retired Air Force veteran Ross
decided law
enforcement in the U.S. also needed such "gaming-changing"
surveillance capabilities. Instead of needing such powerful surveillance to track suspected terrorists,
the Los Angeles County Sheriff's Department used it to track
necklace-snatchers, thieves similar to purse-snatchers, except they
were stealing necklaces. PSS high-resolution surveillance cameras were fitted to the belly of small
plane, giving the police the power to literally watch the entire city of Compton, CA. CIR said of the sample image :
"Persistent Surveillance Systems technology captures in real time a
necklace snatching and the getaway car that was involved." Those aerial
from above in the United States, McNutt, the creator of Ohio-based Persistent Surveillance Systems,
cameras can "record a 25-square-mile patch of Earth constantly-for up to six hours." Although the aerial surveillance isn't
as powerful as the unblinking, all-seeing 1.8-gigapixel camera of DARPA's ARGUS-IS, McNutt believes that in a few years,
Earth, only with TiVo capabilities." "Our whole system costs less than the price of a single police helicopter and costs less
for an hour to operate than a police helicopter," McNutt told CIR. "But at the same time, it watches 10,000 times the area
L.A.
County Sheriff's Sgt. Doug Iketani told CIR, "The system was kind of
kept confidential from everybody in the public. A lot of people do
have a problem with the eye in the sky, the Big Brother, so in order
to mitigate any of those kinds of complaints, we basically kept it
pretty hush-hush."
that a police helicopter could watch." Why hadn't the citizens of Compton heard of the aerial surveillance?
Several
former officials and telecommunications workers have indicated that
the NSA program extends beyond the surveillance of those
suspected to be linked to foreign terrorists. A significant disclosure
came in 2005 when former technician Mark Klein revealed that AT&T
was cooperating with the NSA. The firm had installed a fiber optic
splitter at a San Francisco facility that made copies of Internet traffic
to and from AT&T customers, and gave them to the NSA.
president can order targeted assassinations, there is no reason why lesser intrusions should be limited.
DHS officials pushed the White House and Justice Department to allow major
exclusions for prominent DHS agencies such as the TSA, Immigration
and Customs Enforcement, and Customs and Border Protection,
officials said. CBP, for instance, will still be allowed to use racial
profiling when conducting inspections at the countrys ports of
entry and interdictions of travelers at the border, officials said .
Some DHS officials also questioned the Justice Departments
authority to set policies for a separate federal agency. DHS Secretary
Jeh Johnson made the case in a series of high-level meetings,
arguing that while his department did not condone profiling,
immigration and customs agents and airport screeners needed to
consider a variety of factors to keep the nation safe, according to
officials familiar with his personal efforts. TSA officials, meanwhile, argued
that they should not be covered by the new limits on the grounds
that the TSA is not a law enforcement agency. We tend to have a very
specific clientele that we look for, said one federal official involved in immigration enforcement, who spoke
In recent months,
on the condition of anonymity to discuss internal deliberations. If you look at numbers, the vast majority of people we
deal with are Hispanic. Is that profiling, or just the fact that most of the people who come into the country happen to be
Hispanic?
Inasmuch as
the overwhelming majority of those selected were Muslims, OFL is a
clear example of a federal program that involves racial profiling .
registered under NSEERS were apparently used to select candidates for investigation in OFL.51
Moreover, because OFL has resulted in no terror-related convictions, the program is also a clear example of how racial
profiling uses up valuable law enforcement resources yet fails to make our nation safer.52 Although Arabs and Muslims,
No Enforcement
TSA regulation enforcement is ineffective- Sikh turbans
are still invasively searched despite better regulation
Leadership Conference 11
The Leadership Conference, coalition charged by its diverse membership of more
than 200 national organizations to promote and protect the civil and human rights of
all persons in the United States, The Reality of Racial Profiling,
http://www.civilrights.org/publications/reports/racial-profiling2011/the-reality-ofracial.html?referrer=https://www.google.com/, 2011//SRawal
Borders
Obama ignores the Immigration law- leads to detrimental
consequences
JAMES JAY CARAFANO 7/13/14 (Immigrants ignore U.S. immigration
laws because Obama won't enforce them, June 13 th, 2014,
http://www.washingtonexaminer.com/immigrants-ignore-u.s.-immigrationlaws-because-obama-wont-enforce-them/article/2550787, Accessed 7/16/15,
EHS MSK)
Today, the flood of unaccompanied minors illegally crossing the
border makes Napolitano's declaration look foolish. Last year, the
Department of Health and Human Services reported it had custody of about
2,000 minors who had entered illegally, without a parent. This year more than
52,000 unaccompanied children have been apprehended at the South Texas
border alone. Why the dramatic upsurge? It comes following the
president's 2012 declaration that his administration would defer,
virtually automatically, deportation of minors unlawfully present in the
U.S. Over the last year, coyotes have been using that promise as a
marketing tool for their people smuggling business. Coupling this
announcement with disastrous policies towards El Salvador, Honduras, and
Guatemala -- the three countries from which most of these children come -Obama has done much to undermine all the enforcement measures
that had stemmed the tide of illegal migration. Now Washington has
stepped in with three proposals to solve the problem. First, the president
has asked for $3.8 billion in emergency spending. That's a
laughable request intended mostly as a sound bite for the White
House to claim it is doing something. Little of the money would go
toward making the border more secure. A lot would go to hiring
immigration judges -- a two-year process that hardly qualifies as emergency
spending . If there are legitimate additional needs Congress should
just address them in the annual appropriations bill. Second, some
want to cut foreign aid to punish El Salvador, Honduras, and
Guatemala. But, Congress has to be careful not to gut programs that help
those nations battle the gangs and cartels that have made life there so
difficult. Indeed, by withholding security assistance funds over the last
few years, Washington has inadvertently fueled the problems many
Central Americans seek to flee. Third, there is a move to amend
current law to allow for expedited removal of minors from countries
that are noncontiguous with the United States. If done right, that
policy change would actually help over the long-term. Even under
expedited removal, U.S. officials must fully consider a childs safety in their
decision-making. After all, once the U.S. takes custody of a minor, its
responsible for that child. Today's border crisis offers an important lesson:
Decryption
Loopholes
Loopholes exist for the FBI and NSA
Cushing 14
Tim Cushing, Techdirt contributor, 12-5-14, "Ron Wyden Introduces Legislation
Aimed At Preventing FBI-Mandated Backdoors In Cellphones And Computers,"
Techdirt., https://www.techdirt.com/articles/20141204/16220529333/ronwyden-introduces-legislation-aimed-preventing-fbi-mandated-backdoorscellphones-computers.shtml//SRawal
the actual wording of the backdoor ban [pdf link], which has a couple of
loopholes in it. (a) IN GENERAL.Except as provided in subsection (b), no agency may mandate that a manufacturer,
Here's
developer, or seller of covered products design or alter the security functions in its product or service to allow the
surveillance of any user of such product or service, or to allow the physical search of such product, by any agency.
Subsection (b) presents the first loophole , naming the very act that Comey is
pursuing to have amended in his agency's favor . (b) EXCEPTION.Subsection (a)
shall not apply to mandates authorized under the Communications Assistance
for Law Enforcement Act (47 U.S.C. 1001 et seq.). Comey wants to alter CALEA or, failing
that, get a few legislators to run some sort of encryption-targeting legislation
up the Congressional flagpole for him. Wyden's bill won't thwart these efforts and it does leave
the NSA free to continue with its pre-existing homebrewed backdoor efforts -the kind that don't require mandates because they're performed off-site
without the manufacturer's knowledge.
Financial Surveillance
private lawsuits--hence Rakoff's desire for facts on the record that can help those suits proceed and his impatience with
In the years following the financial crisis, the media reported on largescaled
scandals in which the biggest banks were illegally involved. Nevertheless,
even after it had learned about these scandals, the U.S. government only
fined rather than prosecuted the relevant banks. This approach, which was
nicknamed too-big-to-jail, caused a great deal of anger and frustration.20
Trying to justify this policy, Attorney General Holder explained that the DOJ
cannot indict big financial institutions because doing so might harm the
economy. Holder, testifying before the Senate Judiciary Committee, said that
he is concerned that the size of some of these institutions becomes so large
that it does become difficult for us to prosecute them when we are hit with
indications that if we do prosecuteif we do bring a criminal chargeit will
have a negative impact on the national economy, perhaps even the world
economy.21 Some have argued that this declaration is unsurprising given
that in 1999, as Deputy Attorney General, Holder instructed prosecutors to
consider collateral consequences when determining whether or not to
prosecute corporations.22
outlined in the Federal Register, comes amid criticism that the Obama administration has gone too easy on major financial
Credit
Suisse operated an illegal cross-border banking business that knowingly and
willfully aided and assisted thousands of U.S. clients in opening and
maintaining undeclared accounts and in using sham entities to hide money .
Under existing Department of Labor rules, the conviction could prevent Credit Suisse from
being designated a Qualified Professional Asset Manag er. That designation exempts firms
from other federal laws, giving them the special status required to do business with many pension funds. The
Obama administration is proposing to waive those anti-criminal sanctions
against Credit Suisse, thereby allowing Credit Suisse to get the QPAM
designation needed to continue its pension business. The waiver proposal follows a larger
institutions that break the law. In its announcement outlining the waiver, the Department of Labor notes that
pattern. In June, Bloomberg News reported that federal prosecutors have successfully pushed U.S. government agencies
to allow Credit Suisse to avoid many regulatory sanctions that could have accompanied its criminal conviction. The
New York Fed said last month that the bank can continue handling
government securities as a so-called primary dealer, reported the news service. The
SEC let the firm continue as an investment adviser while the agency
considers a permanent waiver. Pensions and Investments magazine has reported that despite
Department of Labor assurances of tough enforcement of its sanctions
against convicted financial firms, the agency has granted waivers for all 23
firms seeking individual waivers since 1997. Critics say that by using such maneuvers, the
Obama administration is effectively cementing a too big to punish doctrine .
That criticism intensified in 2012 and 2013, when top Justice Department officials defended the administration's
reluctance to prosecute banks by publicly declaring that the government considers the potential economic impact of such
prosecutions. Those declarations echoed an earlier memo by Attorney General Eric Holder, which stated that officials
could take into account collateral consequences when deciding whether to prosecute major corporations. Why is the
Obama administration reducing sanctions on Credit Suisse? The administration says it is a decision based on pragmatism,
not favoritism. The Federal Register announcement, for instance, notes that Credit Suisse has assets of nearly $1 trillion,
and argues that if the anti-criminal provisions were enforced, the bank would lose its ability to offer investment products
to pension funds. The announcement also argues that the Credit Suisse entities that specifically conduct pension business
are independent of and not influenced by Credit Suisse AGs management and business activities. What the
employees
of Credit Suisse have given President Obama's campaigns more than
$376,000. That's particularly relevant in light of an April study of SEC data
from London Business School professor Maria M. Correia. That analysis
showed that politically connected firms are on average less likely to be
involved in enforcement action and face lower penalties if they are
prosecuted.
administration did not mention, of course, is that according to data compiled by the Sunlight Foundation,
FACTA
CIA can collect info about international money transfers
Gorman et al 14
Siobhan Gorman, Devlin Barrett and Jennifer Valentino-Devries, Gorman is a reporter
for The Wall Street Journal covering terrorism, counter terrorism, and intelligence and
Barett is staff reporter for the Wall Street Journal covering federal law enforcement
and security, Devries works on special projects for the Investigations group at The
Wall Street Journal, 1-25-2014, "CIA's Financial Spying Bags Data on Americans.
WSJ,
http://www.wsj.com/articles/SB10001424052702303559504579198370113163530//S
Rawal
the United States, officials said. A small fraction of Swift's records involve
transactions entirely within this country, but Treasury officials said they were
uncertain whether any had been examined.
United States or on those that take place bank-to-bank. The majority of the transactions recorded take place entirely
outside of the United States, the newspaper said, but
No Circumvention
been said that novel legal questions come before the FISC only [o]nce in a
very great while.[32] If this proposal is adopted, critics of the FISC
should be at peace with the fact that the judges will probably
continue to approve the vast majority of the executives routine
requests; in other words, adding an occasional adversary for the
most significant cases is unlike to affect the win rate. But the simplest
lesson of this analysis is that public discourse should stop focusing on
the rate with which the FISC approves applications. Ultimately, we
should care about the substance of what the court approves, not the
frequency with which it does so. And if the substance of what the
court does affects how the government selects applications, theres
no reason to think FISC reforms will change the win rate. Even an ex
parte process that has satisfied the FISCs most fervent critics might
continue to produce an outcome in which the government always
wins.
under the radar. That changed after 2005, when The New York Times
disclosed a National Security Agency program of surveillance of e-mail to and
from foreign countries. Though the surveillance was conducted outside of
FISA (Congress later specified that FISA court approval was required), the
disclosures brought the court to the publics attention. Criticism of the
court (on which I served for six years after 9/11, while the caseload grew
enormously) revived recently after revelations that the N.S.A.,
without court orders specifying individual targets, gathered troves
of data from companies like Google and Facebook. Critics note that
the court has approved almost all of the governments surveillance
requests. Some say the court is virtually creating a secret new body
of law governing privacy, secrecy and surveillance. Others have called
for declassified summaries of all of the courts secret rulings. James
Robertson, a retired federal judge who served with me on the FISA court,
recently called for greater transparency of the courts proceedings. He has
proposed the naming of an advocate, with high-level security clearance, to
argue against the governments filings. He suggested that the Privacy and
Civil Liberties Oversight Board, which oversees surveillance activities, could
also provide a check. I would go even further. In an ordinary criminal case,
the adversarial process assures legal representation of the defendant.
Clearly, in top-secret cases involving potential surveillance targets, a lawyer
cannot, in the conventional sense, represent the target. Congress could,
however, authorize the FISA judges to appoint, from time to time,
independent lawyers with security clearances to serve pro bono publico
for the publics good to challenge the government when an application for
a FISA order raises new legal issues. During my six years on the court,
there were several occasions when I and other judges faced issues
none of us had encountered before. A staff of experienced lawyers
assists the court, but their help was not always enough given the
complexity of the issues. The low FISA standard of probable cause
not spinelessness or excessive deference to the government explains
why the court has so often granted the Justice Departments
requests. But rapid advances in technology have outpaced the
amendments to FISA, even the most recent ones, in 2008. Having
lawyers challenge novel legal assertions in these secret proceedings
would result in better judicial outcomes. Even if the government got
its way all or most of the time, the court would have more fully
developed its reasons for letting it do so. Of equal importance, the
appointed lawyer could appeal a decision in the governments favor to the
Foreign Intelligence Surveillance Court of Review and then to the Supreme
Court. No opportunity for such review exists today, because only the
government can appeal a FISA court ruling. One obvious objection:
judges considering whether to issue an ordinary search warrant hear only
from the government. Why should this not be the same when the government
goes to the Foreign Intelligence Surveillance Court? My answer: the court is
unique among judicial institutions in balancing the right to privacy against
the presidents duty to protect the public, and it encounters issues of
LINDA WERTHEIMER, HOST: It's MORNING EDITION, from NPR News. I'm Linda
Wertheimer. RENEE MONTAGNE, HOST: And I'm Renee Montagne. The NSA
leaks revealing the broad extent of U.S. surveillance programs are also
putting a spotlight on the special court that oversees them. It's called the
Foreign Intelligence Surveillance Court. Created by Congress in 1978 to
ensure the government doesn't abuse its surveillance powers, it operates in
secret. NPR's Dina Temple-Raston has this report on how the court works.
DINA TEMPLE-RASTON, BYLINE: The criticism of the Foreign Intelligence
Surveillance Court is simple: that it's a rubber stamp, and that the
government always gets what it wants. And here's a number that seem
to support that: 1,856. That's the number of applications presented to the
court by the government last year. And it's also the number that the court
approved: 100 percent success. But Joel Brenner, the former general counsel
at the National Security Agency, says this is not proof that the FISA court is a
rubber stamp. JOEL BRENNER: I can tell you that that court has taken a
wire brush to certain applications that have come before it. The idea
that somehow they put their stamp on everything the government
puts before them couldn't be farther from the truth. TEMPLE-RASTON:
To understand why every application seems to be approved, you have to
understand how the process works. The government goes to the FISA court
with a proposition. It tells the judge, for example, that the NSA wants to track
the phone calls and emails of someone they say is vital to an international
disclosed by Edward Snowden, the NSA systems analyst who leaked significant information about the
spying program. After Snowden began exposing the NSA's operations in June, Obama instructed the board
to lead a "national conversation" about the secret programs. The board has been given several secret
briefings by national security officials and it plans a comprehensive inquiry and a public report on the
matter. The board's chairman, David Medine, had told The Associated Press in advance of Tuesday's
hearing that "our primary focus will be on the programs themselves. Based on what we've learned so far,
further questions are warranted." Robertson, who said he asked to join the FISA court "to see what it was
up to," had previously played a central role in national security law. Robertson was the judge who ruled
against the Bush administration in the landmark Hamdan vs. Rumsfeld case, which granted inmates at the
U.S. naval prison at Guantanamo Bay, Cuba, the right to challenge their detentions. That ruling was upheld
Robertson said the system needed the presence of a legal adversary to act as a check on the
government's programs. "This
n228
Jealousy would
still exist, but perhaps the existence of the statute would reinforce,
and increase awareness of, the social norm that frowns on spying .
Spouses, recognizing the possibility of surveillance thanks to the statute's
existence, might be more cautious. Discouraging snooping might
n229
by a foreign power or its agent. n21 If the government ignores this warrant
requirement and engages in electronic domestic surveillance anyway, it will
be found to have violated FISA. n22 In such a case, FISA creates a direct private
cause of action for anyone "who has been subjected to ... electronic
surveillance" in violation of FISA. n23 Interestingly, FISA specifically
contemplated the potential civil liability of private
telecommunications providers assisting in government surveillance,
but the Act made clear that such private carriers would be
protected from civil suit only when they assisted the government
"in accordance with the terms of a court order , [*208] statutory
authorization, or certification" in writing from the Attorney General .
n24
At the time of these events, Brandon Mayfield was an American citizen born in
Oregon and reared in Kansas. n6 He was married with three children, a former U.S. Army
officer with an honorable discharge, and a practicing Oregon lawyer. n7 In what became integral
to the Mayfield family's civil suit against the U.S. Government, Mr. Mayfield was also a
practicing Muslim . n8 The Mayfield family alleged that their religion and ties to the local
Muslim community caused the Government to mishandle the case and violate the family's civil
rights. These allegations had merit because the U.S. Government
would ultimately pay a settlement and apologize to Brandon
Mayfield, who was completely innocent of any connection to the
terrible events in Madrid . However, before his innocence could be
shown, the Government turned the Mayfield family's world upside
down by using all the tools of counter-intelligence, national
security, criminal investigation, and prosecution. As a result of the
Mayfield family's civil suit, a federal court declared portions of the
Foreign Intelligence Surveillance Act [hereinafter FISA ], n9 to be unconstitutional
under the Fourth Amendment of the United States Constitution . n10
This article examines Mayfield v. United States and concludes that the court erred. The story of
the Mayfields is the epitome of the old adage that "bad facts make bad law." Mr. Mayfield was an
innocent man that the Government accused of being a terrorist and in the process invaded his
privacy and freedom. In a society that treasures both liberty and justice, it is tragic when the
Government accuses an innocent person of an offense he did not commit. In this particular case, it
is distressing to suspect that Mr. Mayfield's religion [*89] played a role in that tragedy. The end
result was that the Madrid terrorists succeeded not just in their immediate objectives of death and
destruction, but also in tarnishing the criminal justice system of the United States, a country they
did not directly attack. Whether through its individual agents or the totality of the justice system,
the U.S. Government failed the Mayfield family, and the resulting financial settlement with the
Mayfields is appropriate. Nothing in this article is meant to detract from that result.
Oversight
Effective
Congress has power over agencies
Michaels 8, Acting Professor, UCLA School of Law. Law Clerk to the Hon.
David H. Souter, U.S. Supreme Court, 2005-06. Law Clerk to the Hon. Guido
Calabresi, U.S. Court of Appeals for the Second Circuit, 2004-05. J.D., Yale Law
School, 2003. (August 2008, Jon D. Michaels, CALIFORNIA LAW REVIEW, All
the President's Spies: Private-Public Intelligence Partnerships in the War on
Terror, 96 Calif. L. Rev. 901, Lexis)
Armed with data far more detailed and more timely than what it currently
receives, n227 Congress could decide to hold hearings (in camera, if
necessary to preserve classified information) to investigate programs that it
suspects are misguided, insufficiently attentive to privacy concerns, overly
burdensome to the corporations, or exploitative of the status differentials that
make it legally easier for the private sector to collect information and give it
to the government than for the intelligence agencies to obtain the data in the
first place. n228 Congress could also hold up confirmation votes on nominees
as leverage to force the Executive to make concessions. n229 Or, it could defund a given [*954] program, which it has previously done when it
disapproved of an intelligence or national-security operation. n230 (It should
be underscored, of course, that even a minority within Congress can wield
tremendous influence, by insisting on various amendments to critical bills, by
itself trying to hold up nominees, or, at least in the Senate, by filibustering.)
The appropriations power n231 may be particularly potent in the intelligence
budgetary arena. Intelligence budgets are treated differently from much of
the rest of the overall federal budget, n232and to the extent intelligence line
appropriations can remain classified yet be subject to programmatic-level
revisions, Congress would have both the dexterity and political cover to
exercise aggressively its co-ordinate powers over intelligence policy. That is,
the ability to tinker with funding streams on a regular basis gives the
legislature a means of acting promptly upon its concerns.n233 What is more,
the concomitant opportunity to appropriate in a manner largely occluded
from the public gives lawmakers the political freedom to challenge imprudent
intelligence policies with less fear of being harshly punished at election time
for their so-called "soft-on-terrorism" vote - a fear that routinely prevents
many a member from voting against (publicly recorded) military-spending
bills. When a vote to deny military appropriations is taken as an article of
disloyalty, as it often is, representatives lose perhaps the most
straightforward and valuable means of influencing foreign policy. n234 None
of this is, of course, to say that Congress [*955] will need to scrutinize every
penny spent on intelligence matters. Most operations, like most expenditures
in the larger budget or, say, most military promotions requiring Senate
confirmation, will be approved as a matter of course. n235 But the option to
affect funding when necessary to redirect misguided policy is not an
inconsequential one.
The White House has offered various reactions to these methods, ranging from unchallenged acceptance,
will describe several of the ways in which Congress has used these tools to attempt to shape national
security policy. 1. Appropriations Riders As a Means of Congressional Oversight: The Boland Amendments
become more common over the last fifty years, as Congress has sought to exercise more control over
small wars and covert activity. n140 The Iran-Contra Affair combined all of these elements and sparked a
broader debate about the role of "restrictive national security appropriations" in shaping defense policy.
n141 The Reagan Administration's attempts to overthrow the Communist Sandinista regime in
Nicaragua in the early 1980s were scandalous for several reasons. n142 Congress, concerned
over reports that the White House was raising and training the anti-Sandinista
Contra movement without appropriate oversight, passed an initial spending
restriction in 1982. n143 This amendment to the DOD Appropriations Act prohibited the use of
funds for military equipment, training, or other activities in support of any group not part of the Nicaraguan
n144 Under the leadership of House Intelligence Committee Chair Edward Boland,
Congress gradually tightened funding restrictions over the next [*2854] several years.
n145 Congress eliminated all funding by 1984, declaring that no money designated for intelligence
armed forces.
activities "may be obligated or expended for the purpose or which would have the effect of supporting,
directly or indirectly, military or paramilitary operations in Nicaragua by any nation, group, organization,
n146 President Reagan signed these provisions into law without objection.
n147 Despite these restrictions, staff members of the National Security Council (a group known as "the
movement, or individual."
Enterprise") channeled money to the Contras as part of a larger scheme to also free U.S. hostages being
held in Lebanon by Iranian-backed forces. n148 The Iran-Contra Affair prompted Congress to initiate an
investigation into the executive branch's apparent deceit and resolve potential constitutional issues.
n149 The congressional committee concluded that the Enterprise executed a covert Contra aid program
by raising "private and non-appropriated money[] and without the accountability or restrictions imposed by
law on the CIA." n150 Moreover, this was a program "that Congress thought it had prohibited." n151
Aside from the conviction of one member of the Enterprise for the commission of several minor offenses,
no legal consequences stemmed from the Iran-Contra Affair. n152 Congress issued a series of
recommendations at the end of its report, reminding the White House that "Congress is the partner, not
the adversary of the executive branch, in the formulation of policy" and calling for a more rigid system of
as designed, the formal framework of consultation and notification is often complemented by a less rigid,
more ad hoc consultative process between the executive and legislative branches that is "an essential
unwritten ingredient in the national security process." n155 [*2855] Congress also must strike a balance
between fulfilling its role as a representative body and observing the need for limited transparency in the
national security context. n156 This section will examine two recent efforts by Congress to control
presidential discretion through the use of reporting requirements. a. The War Powers Resolution Spurred
the deployment, the constitutional and legislative authority under which the President is conducting the
military operation, and an estimation of the involvement's scope and duration. n159 This reporting
requirement remains in effect for the duration of the engagement, during which the President must submit
unless Congress has declared war, been incapacitated, or voted to delay the deadline.
The first test came in 1975, when President Gerald Ford initially sought authorization to evacuate the
remaining U.S. personnel from Cambodia and South Vietnam, but, after growing impatient with
congressional delays, unilaterally approved the evacuations under his executive authority to protect
American lives. n163 Two missions to recover captured Americans, from the Mayaguez commercial ship
under President Ford and the U.S. embassy in Iran under President Carter, have complied with the
reporting requirements in letter but not in spirit. n164 In both cases, the White House circumvented
[*2856] congressional input by waiting to file the report until after the engagement had either ceased or
n170 If the President complies with neither of these options, he still must inform the intelligence
n171
committees "in a timely fashion," along with providing justification for not notifying them earlier.
authorization and appropriations process, Congress can signal its intelligence and policy priorities through
both the allocation of funds and the inclusion of non budget-related clauses in the authorization and
years, the Senate has withheld confirmation until the executive branch agreed to share additional
information on key areas of congressional oversight of intelligence activities. Congressional Hearings:
Investigations:
SSCI can use the treaty ratification process to indirectly press related national
security policy issues. Government Accountability Office (GAO): The GAO is the
investigative arm of Congress, particularly focused on budget-related issues.
As a non-partisan, objective audit and evaluation agency, the GAO gives
financial oversight capabilities to Congress . However, classification and security clearance
hurdles set by the White House may limit the power of the GAO to investigate intelligence-related topics.
President
The president complies with congressional authority
Dellapenna 6, Professor of Law, Villanova University School of Law;
B.B.A., University of Michigan (1965); J.D., Detroit College of Law (1968);
LL.M. in Public International & Comparative Law, George Washington
University (1969); LL.M. (Environmental Law), Columbia University (1974).
(Fall 2006, Joseph W. Dellapenna, ILSA Journal of International & Comparative
Law, PRESIDENTIAL AUTHORITY AND THE WAR ON TERROR, Lexis)
Presidential exercises of unilateral authority did not end with Youngstown
Sheet and Tube, but Presidents thereafter tended to involve Congress in their
more controversial actions. In Vietnam, the Presidents did not claim sweeping
authority independently of Congress, although they came to be accused of
abusing the powers conferred by Congress n93 and of lying to Congress to
obtain authorization for the war. n94 Unity between the political branches did
not hold. Congress repealed the authorization in 1971 n95 and took steps to
bar continuation of the War. n96 Congress also enacted legislation to limit the
exercise of presidential authority as commander-in-chief (the War Powers
Resolution of 1973 n97) and to assure judicial and congressional oversight of
intelligence gathering within and without the United States (the Foreign
Intelligence Surveillance Act n98). Presidents have never been happy with
these restraints, consistently [*38] insisting that they are not bound by
them, n99 yet Presidents have complied with them. n100 President Bush's
report to Congress on the actions taken to respond to the 9/11 attacks
exhibits the typical Presidential posture: compliance with the War Powers
Resolution's procedures while insisting that he is not bound by it:
Enforces law
Congress can guarantee the executives abide by the law
Welling 12 assistant-professor at Groningen University. (August 2012,
George M. Welling, Oversight Powers of Congress,
http://www.let.rug.nl/usa/outlines/government-1991/the-legislative-branchthe-reach-of-congress/oversight-powers-of-congress.php)
Congress' oversight function takes many forms: committee inquiries and
hearings; formal consultations with and reports from the executive; Senate
advice and consent for executive nominations and treaties; House impeachment proceedings and
subsequent Senate trials; House and Senate proceedings under the 25th Amendment in the event that
informal meetings
between legislators and executive officials; congressional membership on governmental
commissions; and studies by congressional committees and support agencies
such as the Congressional Budget Office, the General Accounting Office or the
Office of Technology Assessment -- all arms of Congress. The oversight power of
Congress has helped to force officials out of office , change policies and provide
new statutory controls over the executive. In 1949, for example, probes by special
Senate investigating subcommittees revealed corruption among high officials
in the Truman administration. This resulted in the reorganization of certain agencies and the
formation of a special White House commission to study corruption in the government. The Senate
Foreign Relations Committee's televised hearings in the late 196Os helped to
mobilize opposition to the Vietnam War . Congress' 1973 Watergate
investigation exposed White House officials who illegally used their positions
for political advantage, and the House Judiciary Committee's impeachment
proceedings against President Richard Nixon the following year ended his presidency.
Select committee inquiries in 1975 and 1976 identified serious abuses by
intelligence agencies and initiated new legislation to control certain
intelligence activities. In 1983, congressional inquiry into a proposal to
consolidate border inspection operations of the U.S. Customs Service and the
U.S. Immigration and Naturalization Service raised questions about the
executive's authority to make such a change without new legislation. In 1987,
oversight efforts disclosed statutory violations in the executive branch's
secret arms sales to Iran and the diversion of arms profits to anti-government forces in Nicaragua,
known as the contras. Congressional findings resulted in proposed legislation to
prevent similar occurrences. Oversight power is an essential check in
monitoring the presidency and controlling public policy .
the president becomes disabled, or the office of the vice president falls vacant;
moved in the mid-1970s to reassert its role in shaping American foreign policy,
including the most controversial tool of that policy, covert action. Secrecy was seen as antithetical to the American
Proponents
of congressional intelligence oversight argued that openness and accountability were the
cornerstone of a legitimate foreign policy, and it was believed that Congress, due to its
diversity of opinion, possessed greater wisdom than the executive branch . Spurred on by the
way, and there was widespread agreement that rogue agencies such as the CIA were a threat to liberty.
sensational revelations of the Church Committee hearings in the Senate and the Pike Committee in the House, both bodies
established permanent intelligence committees.
It is still widely believed that the Church and Pike reforms were an attempt to cure a cancerous growth on the
Constitution that had developed during the Cold War, an era which witnessed an increasing reliance on executive secrecy
and the creation of a private army for the president in the form of the CIA. Senator Frank Church and his allies claimed
that an assertive legislative role would bring the United States back to the genius of the Founding Fathers. This assertion
was made despite the fact that American presidents from 1789 to 1974 were given wide latitude to conduct clandestine
operations they believed were in the national interest. President Washington, in his first annual message to Congress in
1790, requested a Contingency Fund, or secret service fund, as one member of Congress described it. Washington was
given this fund, in the amount of $40,000, a sizable sum in the early 1790s. The president was not required to report how
he spent this money, he merely had to divulge the amount of money spent, without revealing to whom or for what reasons
it had been spent. Thomas Jefferson, James Madison, Andrew Jackson, and Abraham Lincoln, all authorized clandestine
operations out of this fund, and did not report the details to Congress. This pattern persisted until the mid-1970s with
little or no change, other than the increasing size and bureaucratization of the nations intelligence apparatus in the
twentieth century. The real aberration occurred in the mid-1970s when the United States granted its legislative branch the
greatest control over intelligence matters of any Western nation, and overturned the system which had prevailed in the
United States since the Founding. The damage
threatened to leak
information in order to derail covert operations they found personally repugnant. Leaks are a
recurring problem, as some member of Congress, or some staff member, demonstrated in the aftermath of the
September 11th attack. President Bushs criticism of members of Congress was fully justified, despite the protests from
Capitol Hill. Leaks have occurred repeatedly since the mid-1970s, and in very few cases has the offending party been
disciplined. One of the Founding Fathers of the new oversight regime, former Representative Leo Ryan, held that leaks
were an important tool in checking the secret government. In the wake of the September 11th terror attack, some
legislators are now proclaiming their commitment to unleashing the CIA and rebuilding its human assets. Just a short
while ago these same legislators were leading the charge to curtail the agency. One such convert is the chairman of the
Senate Foreign Relations Committee, Joseph Biden. The Delaware Democrat was one of seventeen Senators who voted in
1974 to ban all covert operations, and proudly noted during his 1988 campaign for president that he had threatened to go
public with covert action plans by the Reagan administration, causing them to cancel the operations. Hopefully Senator
Biden, and other congressional converts, are undergoing a genuine epiphany. Perhaps they now realize, as Henry
Kissinger once observed about the Church Committee, that it is an illusion that tranquility can be achieved by an abstract
purity of motive for which history offers no example. It is precisely this illusion which has prevailed in congressional
circles since the heyday of Frank Church and Otis Pike. As Church himself once argued, the United States should not fight
fire with fire . . . evil with evil. Another convert is Senator Robert Torricelli of New Jersey, who led the charge in the mid1990s to prevent the CIA from hiring unsavory characters. Torricelli rallied to the defense of State Department employee
Robert Nuccio, who leaked classified material dealing with CIA operations in Guatemala to Torricelli, who in turn held a
press conference and revealed the information to the media. It was these revelations that led to congressional restrictions
on the ability of agents in the field to deal with bad people. Torricelli is now calling for a thorough inquiry into what he
calls the intelligence communitys stunning failure. There is almost universal agreement that the CIA remains overly
reliant on technological tools in gathering information on very human, very political, problems. Yet Congress is partly
responsible for this, for the intelligence committees (with the support of some in the executive branch, particularly in the
Carter and Clinton administrations) were determined to keep Americas hands clean. Technology was safer -- it kept us at
a distance from the dirty stuff. The sad reality is that a CIA operative with any hope of infiltrating a terrorist cell would
need to demonstrate his bona fides in any number of reprehensible ways. These are unpleasant thoughts to contemplate,
and they certainly do not fit our conception of the way the world ought to work. But America cannot have it both ways -- it
cannot expect to deter an Osama bin Laden and keep its hands clean at the same time. Presidents need options short of
war to handle this type of threat. While the old CIA may have been noted for the cowboy swagger of its personnel, the
new CIA is, in the words of one critic, composed of cautious bureaucrats who avoid the
risks that come with taking action, who fill out every form in triplicate and put the
COURTS
Courts Solve
Government to justify the search-incident-to-arrest rule crumbles entirely when a cell phone is used to
access data located elsewhere, at the tap of a screen. And this problem is compounded by the fact that
[c]ell phone users often may not know whether particular information is stored on the device or in the
cloud, and it generally makes little difference. See Brief for Electronic Privacy Information Center in No. 13132, at 12-14, 20. The Court rejected outright the governments proposal that agencies develop
protocols to address concerns raised by cloud computing .
Court also explicitly rejected the governments argument that call logs and
other metadata are not deserving of Fourth Amendment protection. The
Courts argument takes clear aim at the third-party rule that non-content
records like call logs, location data, and other metadata held by third parties
can be collected by the government without a warrant. Like the data stored on cell
phones, metadata can reveal an individuals private interests and concerns can also reveal where a
person has been and there is an element of pervasiveness in the collection of all metadata records
about an individual. Citing Justice Sotomayors concurrence in United States v. Jones, the GPS tracking case
from the October Term 2011, the Chief Justice wrote: Although the data stored on a cell phone is
distinguished from physical records by quantity alone, certain types of data are also qualitatively different.
An Internet search and browsing history, for example, can be found on an Internet-enabled phone and
could reveal an individuals private interests or concernsperhaps a search for certain symptoms of
disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has
been. Historic location information is a standard feature on many smart phones and can reconstruct
someones specific movements down to the minute, not only around town but also within a particular
This does not bode well for the government in the continued litigation
over the NSAs surveillance of Americans. In defending the NSAs massive
collection of the telephone records of all Americans, the government has
argued that the collection of this metadata is materially indistinguishable
from the collection of a single telephone number permitted by the Court in
Smith v. Maryland, a case decided in the era of the rotary dial phone.
Addressing the governments claim that there is little difference between the
search of cellphone data and the physical search the Court had previously
allowed following an arrest, Roberts said, That is like saying a ride on
horseback is materially indistinguishable from a flight to the moon. Both are
ways of getting from point A to point B, but little else justifies lumping them
together. The Smith issue was not squarely presented because the government did not argue in either
building.
case that a search had not occurred. But Roberts did point to the distinguishing facts when that case is
squarely presented: Moreover,
phone records on an as-needed basis after obtaining judicial approval for each query. Lynch did not order an immediate
cessation of the surveillance program. Instead, Lynch noted that the congressional debate will likely resolve the issue one
way or another. Congress must act in some fashion before June 1, when Section 215 is due to sunset, or let the authority
which the NSA uses to justify the programexpire completely."If Congress decides to institute a substantially modified
program, the constitutional issues will certainly differ considerably from those currently raised," Lynch wrote. "If Congress
fails to reauthorize [Section 215] itself, or reenacts [Section 215] without expanding it to authorize the telephone
metadata program, there will be no need for prospective relief, since the program will end, and once again there will be
time to address what if any relief is required in terms of the data already acquired by the government." Responding to the
court ruling during a Senate hearing Thursday, new Attorney General Loretta Lynch said Section 215 "has been a vital tool
in our national security arsenal." She added, "We are reviewing that decision, but given the time issues we are also
except by passing some sort of clean reauthorization. His top deputy, Majority Whip John Cornyn, has indicated a far
shorter extension may be offered. But the surveillance deadline is getting wrapped up into broader congressional fights
House and Republicans. Rep. Jim Sensenbrenner, the original author of the post-9/11 Patriot Act, has insisted since the
Snowden revelations emerged that Congress never intended to grant the government the authority to scoop up U.S.
phone data in bulk. "Today's court decision reaffirms what I've been saying since the Snowden leaks came to light .
Congress never intended Section 215 to allow bulk collection, " Sensenbrenner said in a
statement. "This program is illegal and based on a blatant misinterpretation of the law. It's time for Congress to pass the
USA Freedom Act in order to protect both civil liberties and national security with legally authorized surveillance." The
Freedom Act, which Sensenbrenner helped author to undo that "misinterpretation," passed the House Judiciary Committee
last week on a 25-2 vote. The government has long argued that the Patriot Act's language supporting collection of records
deemed "relevant" to a national security investigation justifies mass surveillance. But Judge Lynch took extreme issue with
that interpretation. "The government takes the position that the metadata collecteda vast amount of which does not
contain directly 'relevant' information, as the government concedesare nevertheless 'relevant' because they may allow
the NSA, at some unknown time in the future, utilizing its ability to sift through the trove of irrelevant data it has collected
up to that point, to identify information that is relevant," Lynch wrote. "We agree with appellants that such an expansive
concept of 'relevance' is unprecedented and unwarranted." But Lynch did potentially leave an out for McConnell and
others who would prefer a reauthorization of the Patriot Act. A post-Snowden renewal of the law, perhaps with slight
modifications, would amount to a tacit endorsement of the program as it currently exists, Lynch suggested. "The text of
[Section 215] cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone
metadata program," Lynch wrote. "We do so comfortably in the full understanding that if Congress chooses to authorize
such a farreaching and unprecedented program, it has every opportunity to do so, and to do so unambiguously." )
Lawmakers suggested the court decision could have a direct impact on how
Congress decides to move forward with surveillance authority in the coming
weeks. "For those who have been pushing for restrictions or different
provisions on Section 215, the bulk collection, it's going to be easier to justify
now," said Sen. Jeff Flake, an Arizona Republican who voted against the
Freedom Act when it fell two votes short of advancing in the Senate in
November. "It has some immediate application for FISA and some of the other
things we are grappling with," Sen. Tim Kaine, D-Va., said Thursday morning.
"I'm actually kind of heartened by that ruling." Sen. Rand Paul, a vocal critic of NSA spying who
is running for president, quickly cheered the decision on Twitter.
In 2002, Chicago Police infiltrated five protest groups, including the American Friends Service Committee.
n26 Although information concerning the full extent and nature of current surveillance is not available,
While limitations on surveillance cannot unduly restrict the Government's ability to conduct necessary
criminal activity supplies the compelling state interest that justifies narrowly tailored investigations. Thus,
protection of national security can coexist with civil liberties, and political
profiling can be eliminated when investigations are premised upon a
legitimate law enforcement purpose, rather than on protected beliefs. In fact, the thesis of
this Article is that the Constitution should prohibit domestic surveillance of U.S. persons' First Amendment
Politically motivated
investigations are not permissible, since the mission of law enforcement is to
enforce the criminal laws, not to monitor political or religious expression. The
history and purposes of the constitutional right of association corroborate this
activity n31 in the absence of a reasonable suspicion of criminal activity. n32
conclusion. n33 A consent decree that essentially adopts the approach I endorse was recently entered
in a political surveillance lawsuit against the Denver Police Department. n34 In addition, the reasonable
suspicion standard should be adopted - or retained - in legislation, regulations, and guidelines that apply to
the FBI and other law enforcement agencies. This standard remains for police departments accepting
federal aid. n35 The FBI's guidelines on domestic terrorism investigations employed the standard, or its
substantial equivalent, for twenty-six years, before severely curtailing its use. n36 The Church Committee
In
light of the Supreme Court's current conception of the constitutional right of
association, the legal arguments favoring restraints on political surveillance
are stronger than ever. Those legal restraints should now be strengthened,
rather than removed.
Report recommended [*628] employing the standard in terrorism investigations as early as 1976. n37
that agencies automatically comply with court decisions, Martin Shapiro warns that "the student of judicialadministrative politics must be prepared for a world of mutual influences rather than sovereign
commands." n56 Shapiro notes that courts typically allow agencies to do as they please and that when
tension can result when court opinions run contrary to an agency's mission or goals. n61 As early as 1970,
Stephen Wasby hypothesized that "compliance is more a function of norms in affected organizations than it
is of Supreme Court rulings." n62 Agency goals and preferences can [*91] color responses to judicial
decisions
Suppose that
Congress disagrees with a Supreme Court ruling invalidating a law, as
Congress disagreed with the 1989 ruling in Texas v. Johnson that the First
Amendments protection for freedom of speech includes the right to burn an
American flag. Congress responded by passing a new law banning flag
burning, acting on its different interpretation of the First Amendment . One way
we can understand the new federal law is as an effort by Congress to persuade the
Court to change its mind. In this instance, the Court accepted the invitation to
reconsider but then reaffirmed the Johnson holding in United States v.
Eichman. Congress then took no for an answer and stopped enacting statutes
that it knew would be struck down. Some members of Congress proposed amending the
state legislature, Congress, or the President attempts to act on a departmentalist view.
Constitution to ban flag-burning, but those efforts failed, even after they were repeatedly renewed.
the issue died because Congress was not willing to insist on an allout confrontation with the Court. According to Gingrich, Congress threw in the towel much too
Eventually,
early. It could, he says, have summoned the Justices who voted in the majority in Johnson and Eichman to
appear before Congress. It could have stripped the courts of jurisdiction to hear constitutional challenges
to laws forbidding flag-burning. It could have impeached judges and Justices who did not bow to its will.
And, even without impeachment, it could have abolished the judgeships and seats on the Supreme Court
that were held by jurists who disagreed with Congress. A Gingrich campaign position paper argues that
Congress should not be afraid to use these tools.
courts in other circuits. For example, a 9th Circuit decision binds the U.S. district courts within the 9th
Circuit, but not federal courts in any other circuit. However, a district court or trial court decision would not
bind higher courts. A state supreme court decision is mandatory on all appeals courts and trial courts in
that state, but not on state courts in other states, and a state court of appeals decision binds state trial
courts in that state. Second, federal courts usually bind only other federal courts, not state courts.
Similarly, state courts usually bind only other state courts. Thus, a decision by the U.S. Ninth Circuit Court
of Appeals, a federal court, mandatory on federal courts within the boundaries of the Ninth Circuit. It is not
mandatory on California state courts, even though California is geographically within the Ninth Circuit.
Similarly, a California Supreme Court decision would bind other California state courts, but not the Ninth
Circuit or other state courts (like Nevada state courts). Finally, federal courts bind other federal courts only
when they interpret and apply federal law while state courts bind other state courts only when they
interpret and apply state law. Sometimes a federal court must apply a states law. In that case, the states
bureaucratic hierarchies in that the decisions of the higher element affect the
lower elements. n37 To the degree that this is correct, it may mean that the
implementation of judicial decisions is similar to that of the implementation of
policies within bureaucracies more generally and that there is some value in
looking at possible linkages between the two. n38 If lower court judges do feel somewhat
constrained by higher court decisions, why might this be the case? Organization theorists often
focus on the sense of professionalism that the vast majority of lower court
judges have. n39 This sense of professionalism usually guides the judicial
decision-making process rather than personal predilections about certain
decisions with which they disagree. n40 It also helps to maintain the integrity of the judicial
system. n41 No lower court judge likes to have [*89] decisions reversed by
higher courts and several scholars have concluded that there is evidence to
support the contention that the authority of higher courts is unusually strong
in judicial organizations. n42 In reality, higher courts have very few tools at their disposal when it
comes to sanctioning lower courts and judges. n43 It is persuasion, often via opinions, n44 that higher
courts usually use in their efforts to keep lower courts in line. n45 This relative freedom is largely due to
the insulation that most judges enjoy. Federal judges are subject to very few external sanctions. n46 This
gives them an exceptional amount of leeway in the performance of their duties, enough to lead some
judicial scholars to maintain that influence is a two-way street between upper and lower courts. n47
Despite these pressures to acquiesce to Supreme Court decisions, political scientist Lawrence Baum argues
that judicial policy preferences can result in non-compliance with higher court decisions. n48 Baum
contends that there is no reason to assume that policy preferences by those in the judicial system should
differ radically from actors in other organizations. n49 Judges may hold strong opinions or policy
preferences like any other organizational actor; such strong opinions may lead lower court judges to defy
higher court rulings. n50 There is some evidence to support this contention. n51
theory provides a novel account that the Supreme Court signals the breadth and wide applicability of a
from which a Supreme Court precedent eventually emerges will more frequently cite and positively treat a
precedent than the other circuits. We argue that the decision of the Court to review a decision from a
particular circuit has important implications for that circuits precedent in that the Supreme Courts review
a direct
treatment of a circuits decision by the Supreme Court serves an important
signal to members of the circuit, which we expect will increase the likelihood
a circuit will cite and positively treat the resulting Court precedent . The empirical
of the circuits decision will affirm or overturn existing circuit precedent. We believe that
results provide robust support for our account. Our interesting findings hold important implications for
judicial research. Our finding on the impact of Supreme Court summary decisions in part confirms, but also
in many ways challenges, previous conceptions of our understanding of how the lower courts cite and
Supreme Court, and the reality that summary decisions now make up a majority of decisions issued by the
Court (Masood and Songer 2013). While this point would be moot if Supreme Court summary decisions did
not have an impact on the courts below or on the law, increasing amounts of evidence strongly suggest
that summary decisions have an effect on how the lower courts deal with the pronouncements of the
Court.
Furthermore, for courts to equate short-term, intermittent surveillance, like the beeper used in Knotts, with prolonged,
advanced [*1937] monitoring would defy societal norms. n265 Advanced surveillance technology intrudes upon what has
historically been considered a "private enclave," and has increased awareness of the importance of privacy. n266
Surveillance technology no longer merely supplants or enhances human capabilities. n267 Instead, technological
development has given rise to completely new methods of surveillance that far exceeds human capabilities. n268 These
enhanced forms of surveillance track an individual's daily life for as long as they are used by law enforcement. n269
Additionally, because devices are monitored remotely, sometimes from offices worldwide, law enforcement agents no
longer need to be nearby receiving a signal through a transmitter. n270 This allows law enforcement to conduct indefinite
surveillance. n271 The information law enforcement is able to obtain as a result provides a full and detailed account of an
individual's life. n272 In this way, technology has provided the government the means to enact the once mythical
State
courts on the other hand have been more attuned to the pace at which
surveillance technology has and continues to progress . n274 Through "new
federalism," these courts have provided greater protection to individual
liberties than federal courts. n275 Where they saw Supreme Court precedent
lacking, States have turned to their own state constitutions . n276 Unwilling to analogize
current forms of surveillance technology with the beeper in Knotts, States have adopted their own,
more modern standards which more effectively protect a person's reasonable
expectation of privacy. n277 In so doing, state court decisions and [*1938]
subsequent state legislation have been responsive to what society is
prepared to recognize as a reasonable expectation of privacy. n278
Orwellian State, and current Supreme Court Fourth Amendment jurisprudence allows this to go unchecked. n273
federal law, not those based on state law grounds. State courts have long
been deciding issues of federal constitutional and statutory law, and have, for
equally long, been rendering decisions interpreting their own state
constitutions as well. But only in the last three decades has state constitution
law, particularly regarding individual rights and liberties, been the special
focus of attention by judges, litigants, and commentators.
AT Activism DA
Non-unique gay marriage was judicial activism
Anderson 6/26 (Ryan Anderson, William E. Simon Senior Research Fellow
at The Heritage Foundation, His amicus brief was cited in Justice Clarence
Thomass dissenting opinion in Obergefell, Symposium: Judicial activism on
marriage causes harm: What does the future hold?, SCOTUSblog (Jun. 26,
2015, 4:28 PM), http://www.scotusblog.com/2015/06/symposium-ryananderson/) //RL
Newsmax TV on DirecTV Ch. 349, DISH Ch. 223 and Verizon FiOS Ch. 115. Get
Newsmax TV on your cable system Click Here Now Special: New Probiotic
Fat Burner Takes GNC by Storm McCaughey also took exception to
constitutional scholar F.H. Buckley's assertion that because of "gridlock" in
Congress, Roberts "has come up with a rule of interpretation for a
government that doesn't work terribly well. At this point, conservatives are
going to have to move on." "The professor's argument is exactly the
argument made by the majority yesterday that the ends justifies the
means. It does not," McCaughey declared. "[T]he need for national
healthcare, whether you believe that or not, is irrelevant to yesterday's
decision," she added. "The administration lied to the court yesterday. The
lawyers for the administration lied and said that the lawmakers never
intended to distinguish between state exchanges and a federal exchange.
That was a lie." Editor's Note: Dementia or Forgetfulness? UCLA Survey
Reveals What Your Symptoms Mean. McCaughey charged Obamacare
architect Jonathan Gruber "was on tape just 20 days after the law was passed
explaining that subsidies would not be available in the states that failed to
set up exchanges." "But the lawyers for the president and the IRS lied to the
Supreme Court and denied that that was the case," she said. "This ruling is
based on that lie." Buckley said that although the decision set a dangerous
precedent, "there are dangerous precedents all the time," noting the
high court's decision to allow same-sex marriage in all 50 states was another
one. "There is no advantage in pushing a sure loser," he said.
AT Hollow Hope
The Courts are specifically better than Congress for
protecting minority groups and rights like privacy through
public policy
Sommer et al 13 (Udi Sommer, PhD, Victor Asal, PhD, Katie Zuber, PhD
Candidate, Jonathan Parent, PhD Candidate, 21 Feb 2013, Institutional Paths
to Policy Change: Judicial Versus Nonjudicial Repeal of Sodomy Laws, Law &
Society Review, Volume 47, Number 2 (2013)) //RL
The goal of this study was to analyze the origins of policy change via different
institutional paths, comparing judicial and nonjudicial institutions. This
question, which has been crucially important in the study of public policy,
judicial politics, and social movements, was examined here for the first time
systematically in a cross-national framework over a period of several decades
and with respect to a question still on the agenda in numerous coun- tries,
namely the decriminalization of same-sex intimacy. While the debate in the
literature may still be unsettled, the theory developed here suggests that
policy change emanates from judicial as well as nonjudicial bodies. The key
message of this study, however, is not limited to the notion that courts create
policy change. Rather, we explain theo- retically, and then substantiate
empirically, that different sets of variables systematically explain policy
change via disparate institu- tional venues. Our findings clearly indicate that
legal precedent in a Common Law system limits the introduction of policy
change via the political branches more than via courts of last resort, and
particularly when such change proves contentious. At the same time, the
path-dependent nature of law in civil law countries makes it easier for policy
change to emanate from the legislature. Indeed, whereas legislative repeal
constitutes 97% of the cases where sodomy laws were revoked in Civil Law
countries, 6 in every 10 repeals in Common Law countries were judicial. Such
findings are significant not only to our understanding of law, but to a range
of Sommer, Asal, Zuber, & Parent 429 topics including legal development,
accountability, and the effects of religiosity on policy formation and change.
In addition, our findings lend support to the notion that political actors are
more constrained by legal status quo than their judicial
counterparts, and accordingly, that the effects of path dependence
on decisionmaking in supreme courts are commensurably weaker.
More broadly, this finding addresses a major criticism leveled against pathdependence scholars concerning their inability to explain policy change. We
contend that the judicial hierarchical structure enables courts of last
resort to produce policy change. Indeed, as Kahn (2006) suggests, such
courts may serve as important mechanisms of change, a relief valve of sorts,
in theories of path dependence. Furthermore, it is evident that political
institutions, such as accountability, entail closer proximity between the will of
constitu- ents and decision-making authorities in the political branches. At
the same time, we find courts are less affected than legislatures by
majoritarian elements including, for instance, political pressures
exerted by religious groups. Some forces at the domestic (e.g.,
democratic conditions) and global (e.g., globalization) levels affect repeal,
notwithstanding its institutional venue. In a subsample of democracies, the
effect of democratic conditions is diminished, but the effects of the other
predictors remain largely unaffected. There is also an important normative
element to this discussion concerning the legitimacy of unelected judges
altering the policy made by decision makers who are accountable to the
electorate. Indeed, this concern was expressed most famously by Bickel
(1962) who wrote of the counter-majoritarian difficulty and more recently
by Powers and Rothman (2002) who see the judiciary as ill-equipped to
resolve issues better left to legislatures. A number of responses have been
offered to this critique, ranging from empiri- cal studies demonstrating the
reluctance of the court to stray too far from public opinion (Barnum 1985;
Mishler & Sheehan 1993), to suggestions that lawmakers themselves create
conditions favorable to judicial policy making (Gillman 2002; Rogers 2001).
The theory proposed in this study (and the empirical support presented thereafter) directly engages this scholarship. As far as the protection of sexual
minorities is concerned, the findings in this study clearly indicate that
judicial institutions may well be the ones to extend legal protections
to minority populations. It is not always clear in such instances, however,
that judges are acting in a counter- majoritarian fashion. When the United
States Supreme Court handed down its decision in Brown, for example, only
17 states required segregation of public schools (Balkin 2008). Similarly,
when the Court decided on the constitutionality of sodomy prohi- bitions in
Lawrence, only 13 states still criminalized same-sex sodomy. Under the right
circumstances, policy change may 430 Institutional Paths to Policy Change
originate from courts of last resort, but such change does not necessarily run
contrary to popular will or to elected institutions.17 As far as predictors of
social change are concerned, and in particular in the context of the
rights afforded sexual minorities, the analytical advantage of
examining disparate institutional paths is clear. For instance, despite
failures to find effects for religiosity in past work (e.g., Frank & McEneaney
1999), our theory and empiri- cal tests illustrate the critical importance of
analytically treating disparate institutional paths in order to accurately assess
the effects of independent variables such as religious constituencies. The
political stars align differently in dissimilar jurisdictions. When Common Law
and strong religious constituencies are present in a polity, courts may be the
venue of choice for those seeking social change. Indeed, the Canadian and
South African cases described earlier are but two examples illustrating these
dynamics. Lastly, this work also offers some empirical predictions to be
further developed and tested in future work. Civil law systems tend to hold
case law to be subordinate to statutory law, which might also explain the
greater reliance on nonjudicial institutions. Testing this theoretical account
would complement the findings in this study. In addition, religious
constituencies beyond those studied here may influence policy output
(Campbell & Monson 2003; Wright, Erikson, & McIver 1987). A thorough
treatment of the dynamics of a broader range of religious groups and
consequent judicial and nonjudicial policymaking (with respect to gay rights
and otherwise) merits further study. With respect to institutional paths to
policy change, future work may wish to examine the introduction of other
policies (related to sexual minorities or otherwise) via disparate institutional
paths. The set of predictors offered in this article may account, for instance,
for the introduction of antidiscrimination policies in different countries. While
some accounts in the literature claim that, in Europe for instance, the mere
decriminalization of same-sex sex inexorably led to the introduction of
antidiscrimina- tion measures (e.g., Waaldijk 2000), the theory proposed here
offers an alternative analysis. Considering institutional paths of policy change
and their respective predictors including type of legal system, special
constituencies, democratic conditions, and glo- balization, our theory offers a
rich framework for scholars studying those processes. Moving beyond sexual
minorities, the findings here may serve future examinations of policy change
relevant to additional minority groups and policy domains.
that NAACP income climbed from $391,000 in 1953 to over $1,000,000 by 1960, with the biggest jump in
The total for all civil rights groups, moreover, increased almost fivefold
from 1948 to 1958 and doubled between 1954 and 1957 . One need not cite Brown as
1954-57.
a sole cause-the murder of Emmett Till was important as well-to find plausible evidence of some causal
correct that "women workers made a smaller percentage of their male counterparts' salaries in 1980 than
data surely renders less conclusive Rosenberg's skeptical refutation that court
decisions had any positive impact . Most of the quantitative data in The Hollow Hope is
interpreted more convincingly, but the author's relentless commitment to
demonstrating limited judicial capacities at times leads him to rely on such
selective readings of the numbers. Finally, it is relevant to note that many of the
historians and social scientists Rosenberg invokes to support specific parts of
his argument do not support his overall interpretation about judicial
impotence. For example, Doug McAdam and Aldon Morris, two well-known authorities often cited by
Rosenberg to interpret the civil rights legacy, provides a rather different account than his. Indeed,
both sociologists accord the NAACP legal effort and Brown victory much
greater-partial and contingent, to be sure, but nonetheless much greatersignificance than does Rosenberg. On the combined impact of Supreme Court decisions and
federal executive policy from the 1930s to 1950s, for example, McAdam summarizes that "the symbolic
importance of the shift would be hard to overstate. It was responsible for nothing less than a cognitive
revolution within the black population regarding the prospects for change in this country's racial status
are we to make of this? Specific examples of unconvincing data can be found in any study, of course. Nor
is it improper for an author to use evidence provided by other scholars who interpret its significance
differently. Nevertheless, Rosenberg's argument largely hinges on evidence regarding scores of discrete
causal connections.
My reading of scholarly literature, and the newspapers for that matter, suggests an overwhelming
obscures the fact that discrete institutions are almost never solitary organs of change in our political
system. Our system of mixed and shared powers usually requires cooperation, or at least consent, from all
branches for policy changes (at least major domestic policies) to even receive authorization, much less
independent agents of change involves an unrealistic test that every branch would fail.19
theoretical development of the model, the empirical studies focus almost exclusively on constraint III (and
the construction of constraint II that links institutional dependence to limited enforcement powers) as the
key explanatory factor. The initial discussion hints at this, to be sure. Rosenberg writes early on about the
third constraint: "In many ways, this is the most difficult constraint to overcome" (at 31). But that turns out
to be an understatement. The bulk of the case studies involve policy areas where the court acted relatively
boldly-expanding beyond past precedents, often at odds with other government branches-but allegedly
produced little significant change due to lack of direct enforcement powers and persuasive moral
decisions themselves, however bold, was usually quite limited in its transformative potential. Consider
structure prevailed in the implementation ruling of May 1955 .... Predictably, white Southerners were
Was the
limited impact of Brown, we might ask, almost entirely a result of uniquely
weak judicial institutions, or the same weakness of will among the justices
that constrained other federal officials ?13 Doctrinal limitations loomed at least as large in
relieved. The Court had decided that school desegregation was a Southern problem."12
other areas. The Justices' choice to develop the privacy logic in abortion rulings reflected a moderate
ideological position that not only failed to guarantee government funding necessary to the exercise of that
Moreover,
the failure of sex discrimination rulings to greatly increase women's low
wages surely has something to do with the fact that the courts have always
treated sex discrimination less seriously than race discrimination, especially
in the workplace.15 The key point here is that Rosenberg's commitment to
demonstrating institutional weakness pushes him to slight recognition of
timid judicial will.16 More radical judicial edicts may not have generated more dramatic changes, to
be sure. But without serious critical analysis regarding the substance of the
opinions themselves, one cannot confidently conclude that "the problem is
not merely the Court's standard but the fact that it is the courts that are
pronouncing it. ... [T]he fault lies not merely with the message but with the messenger itself" (at 213;
right but actually invited restrictions on funding and other aspects of a woman's choice.14
emphasis in original). This is especially surprising in that Rosenberg acknowledges the constraint of rights
traditions early on but fails to link that constraint to both broader arguments about liberal ideological
biases and specific doctrinal limitations that progressive scholars-including especially Critical Legal Studies
Now that the House of Representatives has voted down an amendment that
would have significantly restricted what information the National Security
Agency can collect about Americans, the best hope of curtailing the spy
agencys powers lies with the courts. And while NSA critics have failed to
rein in the eavesdropping agency through legislative action, they may have
more luck with the third branch of government thanks to a leaked
classified document, a rare bit of good fortune for a leading civil liberties
group, and a sympathetic justice of the Supreme Court. The fact that more
than 200 lawmakers voted against a key NSA collection program, and one
authorized by the long-controversial Patriot Act, represents a victory of sorts
for surveillance critics. There has rarely been such a pronounced opposition
to surveillance authorities, and the fact that the Obama administration had to
mount a full court press to preserve the program, and still only eked out a
narrow win, may give opponents some hope that a legislative effort could be
mounted again with a different result. But there is no clear next step
legislatively. No bill or amendment on the table. Yet there is a path
forward on the judicial front. Challenges to the NSAs surveillance
programs have historically failed in large part because no one has been able
to prove he had his communications scooped up in the agencys electronic
dragnets. That information is an official secret. The American Civil Liberties
Union, one of the most stalwart opponents of the NSAs broad surveillance
authorities, failed to challenge the agencys operations in the Supreme Court
because of this Catch-22. It couldnt prove it had been spied upon, even
though the government acknowledged generally that such spying does
occur. But now, classified documents released by the ex-NSA contractor
Edward Snowden leave no doubt that at least one telecommunications
company, Verizon Business Network Services, has handed over bulk
telephone metadata to the NSA under a court order. The key for a new
challenge by the ACLU, which it filed last month, which it filed last month in
U.S. District Court, is that its a customer of Verizon Business Network
Services. Not just Verizon, but this particular division of Verizon. This is the
closest thing the group has had to a smoking gun, and conceivably it could be
sufficient to establish legal standing to bring the lawsuit. The case could end
up in the Supreme Court. But to succeed, the ACLU or any challenger
will have to convince jurists that the long-standing legal treatment of
metadata is outdated and needs to be changed. The NSAs collection of this
data is enabled by a 1979 Supreme Court ruling that telephone numbers are
not content, and therefore arent protected by the Fourth Amendments
prohibition on unreasonable searches. A telephone customer willingly hands
over his number to the service provider whenever he places a call, and
therefore cannot expect that the information is private, the court found. But
at least one justice has indicated it may be time to rethink this analysis, in
light of the fact that metadata is not only ubiquitous today, but can be
exceptionally revealing of an individuals communications patterns, his social
networks, and his movements. "This approach is ill-suited to the digital age,
AT Political Capital DA
Non-unique- ACA and same sex marriage were
controversial
Devaney 6/30 (Jason Devaney, writer for NewsMax, 30 Jun 2015, CNN Poll:
Majority of Americans Back Controversial Supreme Court Decisions,
https://www.newsmax.com/Newsfront/poll-majoirity-agree-supremecourt/2015/06/30/id/652942/)
The majority of Americans are in line with the Supreme Court's decisions last week regarding gay marriage
that 63 percent of
Americans felt the court was right in upholding the subsidies portion of the
Obamacare law, and 59 percent agreed that same-sex marriage should be a
Constitutional right across the country. Politically, Americans are more divided on the
polarizing cases. Seventy-nine percent of Democrats sided with the Supreme Court on the
Obamacare case, while 70 percent agreed with the court on same-sex marriage. Fifty-four percent
of conservatives, meanwhile, are against the court's ruling about Obamacare,
and 59 percent do not agree with the ruling on gay marriage . The same poll also
found that 37 percent of Americans feel the court is too liberal, the highest
figure in the history of CNN polls dating back to 1993 . Many view the Supreme Court
rulings of last week as a sign the court is moving to the left. Texas Sen. Ted Cruz, a Republican
candidate for president, called the court's decisions "lawless" Tuesday
morning. In a New York Times op-ed, Jeffrey Rosen argued that the rulings were not actually political
and the Affordable Care Act, according to a new survey. A CNN/ORC poll found
and instead were simply the product of the court looking at the cases with Congress' intent in mind.
Regarding the CNN poll, a similar survey taken in early June found that about half of Americans had at least
a moderate amount of trust in Supreme Court as it prepared to announce its decisions regarding same-sex
reading the constitution or the dictionary in the wake of the decisive rulings. "You now have a court that's
not reading the Constitution, not reading the dictionary," Jindal said.
points in just a few months is worth noting. The rise may be in response to
what conservatives are calling judicial activism on the part of the Supreme
Court. Many conservatives believe that the people should be the arbiters of
laws regarding marriage. This sentiment has bled into the presidential race. Senator Ted Cruz (RTX) has called for judicial retention elections, which would essentially allow the American people to judge
the Supremes every eight years. However, Ilya Shapiro of the Cato Supreme Court Review believes he has
a better answer: If we are going to tweak the Supreme Court because its not sufficiently responsive to
the people, adding an election element isnt the way to goIf the federal judiciary were to borrow a
structural element from the states, Id go with term limits rather than retention elections. The likelihood of
anything changing is slim-to-none, but the dramatic rise in American resentment toward SCOTUS could
play a big role in upcoming elections.
used in Arizona, Ohio and Oklahoma executions in 2014. The executions took longer than usual and raised
concerns that the drug did not perform its intended task of putting inmates into a coma-like sleep.
Justice Samuel Alito said for a conservative majority that arguments the drug
could not be used effectively as a sedative in executions were speculative
and he dismissed problems in executions in Arizona and Oklahoma as "having
little probative value for present purposes." In a biting dissent, Justice Sonia Sotomayor
said, "Under the court's new rule, it would not matter whether the state intended to use midazolam, or
instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake."
Alito responded, saying "the dissent's resort to this outlandish rhetoric reveals the weakness of its legal
arguments." In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate
whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg joined Breyer's opinion. "I
believe it highly likely that the death penalty violates the Eighth Amendment," Breyer said, drawing on
cases he has reviewed in more than 20 years on the Supreme Court bench. More than 100 death rowinmates have been exonerated, showing that the death penalty is unreliable, Breyer said. He said it also is
imposed arbitrarily, takes far too long to carry out and has been abandoned by most of the country. Last
year, just seven states carried out executions, he said. The two senior liberal justices joined retired Justice
John Paul Stevens, who was in the courtroom Monday, and Justice Harry Blackmun in late-career
pronouncements calling into question the use of the death penalty, although Breyer and Ginsburg stopped
short of declaring their outright opposition to capital punishment.
struck down every state's death penalty laws. Some justices believed at the
time that this decision effectively would end capital punishment. Instead,
many states wrote new laws, and four years later the court reinstated the
death penalty, a decision in which Stevens joined. In an extremely unusual turn Monday, four justices
read their opinions from the bench in the lethal execution case. Justice Antonin Scalia, part of the court's
majority, read a brief reply to Breyer. "Welcome to Groundhog Day," Scalia said, noting that the court has
repeatedly upheld the use of capital punishment. Scalia used Breyer's own words to complain that the
liberal justices were willing to discard long-settled principles in a term in which the left side of the court
won most of the closely contested cases, though not the lethal injection dispute. "It is not often in the law
that so few have so quickly changed so much," Scalia said. Breyer employed those exact words several
The Oklahoma
case has been especially contentious from the start. The Supreme Court
became involved in January with an unusually public disagreement among
the justices over executions.
years ago at the end of a term in which the conservative justices frequently prevailed.
The right prevailed in 2, both in the final sitting of the Term. In the 10,
no Justice on the left voted with the right; the four Justices on the left voted
together in every one of those cases. A Justice on the right voted with the left
4 times. Those votes determined the outcome in 2 cases, because Justice
Kennedy voted for the more conservative result. Note that the analysis above is skewed
along.)
against finding the Term particularly liberal by treating Justice Kennedy as the Courts center. That is true
ideologically, but he is certainly a conservative. If he were characterized that way for my analysis, the
number of defections to the left would be much higher. By that measure, a Justice on the right voted with
the left 25 times (compared with 3 times the reverse happened). That occurred in all 10 of the 10 major
cases (because no Justice on the left voted with the right in any of those cases), and determined the
outcome in all of them.
wings. To illustrate the potential significance of these effects, consider the following illustration. For the
data included in our empirical test (the 19532005) terms, the median justice in the majority coalition
differs from the median justice of the Court in 65.3% of the cases. The average distance between the
median member of the majority coalition and the median justice in these cases is 0.66 on the Martin-Quinn
scale. Across terms, this average distance varies from a minimum of .25 to a maximum of 1.13. To put
these numbers into context, the difference in Martin-Quinn scores between justices Kennedy and Rehnquist
during the 2003 term was .60, and the difference between Kennedy and Roberts during the 2005 term was
does not favorand therefore result in a reversal if the lower courts decision
is reviewed. On the other hand, deciding the case at hand in a manner that
secures the disposition favored by the median justice of the Supreme Court
requires the lower court to announce a legal rule that is inconsistent with the
Courts prior decision.
In particular, interest groups who invest in the legislative process by securing legislation that favors their
preferences may be at odds with the current legislature or executive (who may prefer judicial
foreclose democratic outlets, federalism rulings can be circumvented by both Congress [*1360] and the
states. n125 Congress can advance the same legislative agenda by making use of another source of
enact state versions of the very law that Congress could not enact. n127 Rightsbased rulings, in contrast, severely limit lawmaker responses. Consider, for example, abortion rights. After
Roe, neither federal nor state lawmakers could regulate abortion in the first trimester. n128 Likewise,
Supreme Court decisions on school busing and school prayer could not be nullified through legislation.
substantive agenda through funding bans, constitutional amendments, the enactment of related
legislation, and the appointment of judges and Justices. Court-curbing measures, in contrast, seem more a
rhetorical rallying call than a roadmap for change. [*1361] That the Roberts Court need not worry about
jurisdiction-stripping legislation is important, but ultimately does not answer the question of whether the
Court should fear Congress. Congress, after all, can slap the courts down in other ways. n132
changes in Congress over the past twenty years suggest that the
Roberts Court has less reason to fear Congress than did the Warren or Burger
Courts. As detailed in Part II, today's lawmakers are less engaged in constitutional
matters and less interested in asserting their prerogative to independently
interpret the Constitution. Correspondingly, lawmakers place relatively more
emphasis on expressing their opinions than on advancing their policy
preferences. Consequently, even though the Rehnquist Court invalidated more federal statutes than
Nevertheless,
any other Supreme Court, Congress did not see the Court's federalism revival as a fundamental challenge
scientists concede, the fact that judges are chosen by a dominant political faction does not mean that
federal courts always issue decisions that accord with the views of that faction. n35 But this political group
Supreme Court, the Solicitor General plays an important role in the development of American law" and can
have a substantial "impact upon the establishment of constitutional and other principles." n71
This
there is more wisdom or rationality or sense (or other good stuff) to the rules
v. standards dispute than first meets the eye. In other words, even if rules v.
standards disputes are stereotyped, almost caricatured, forms of argument,
there may be more substance to these arguments about form than we might
have guessed. But I dont think so: Ultimately, all the more promising
conventional ways of understanding the rules v. standards dispute will turn
out to be located within the bounds of that dispute. The conventional forms of
legal thought allow us no place outside of the rules v. standards dichotomy
from where we can make sense of the dispute. In the end, no explanation (or
all explanations) of the rules v. standards dispute is left standing. The
attempt to tie form to substance is just so much form.
there are no conclusions, that things go on, and that everything will always be
revised. A conclusion here would be particularly ironic. After all, this Article is about a dialectic I claim is
that
omnipresent, yet bereft of any synthesis. What to say? Here are a couple of possibilities: The mainstream
consider whether they truly do reflect concerns of substance or not. The danger of the dialectic is that we
may think we are discovering something about substance, when in fact we are only discovering something
and how it is that we allow such silly games to have such serious consequences.
source. Hans Kelsen repeatedly emphasized in process of developing his socalled Pure Theory of Law that these rules or norms are not moral norms:
morality merely condones conduct conforming to, and disapproves of conduct
contravening, its norms, whereas law is a coercive order which seeks to
attach sanctions to behavior which opposes its norms. In this respect, he
noted the Pure Theory of Law continues in the tradition of nineteenth-century
positivist legal theory the theory according to which, in the words of John
Austin, [t]he binding virtue of a law lies in the sanction annexed to it. It is
well known that this theory of law as coercive orders was dismantled by H. L.
A. Hart in The Concept of Law. Yet, before the theory had come under Harts
scrutiny, at least one of its shortcomings was starkly highlighted by the
doctrine of stare decisis. As any law student knows, stare decisis is the idea
that precedents ought to be adhered to when, in later cases, the material
facts are the same. The doctrine brings with it numerous difficulties not
least that of determining which cases are materially alike. But the difficulty
which stare decisis posed for classical legal positivism was very specific.
Though a decision of a court must (unless successfully appealed) be accepted
by the litigants, and though it may establish a precedent which is more
generally binding on the citizenry, it is not immediately clear what it means
to say even though we often do say that the decision binds future courts.
Cross and Harris, in Precedent in English Law, observe that [t]he peculiar
feature of the English doctrine of precedent is its strongly coercive nature.
English judges, unlike their counterparts in many other jurisdictions, must
have regard to the previous decisions of higher courts, and are sometimes
obliged to follow a previous case although they have what would otherwise
be good reasons for not doing so. As a piece of doctrinal description, this
statement is unremarkable. But from the perspective of classical legal
positivism, it poses a serious difficulty. For what does it mean to say that
precedents bind? The answer seems to be that precedents bind because
judges consider themselves to be bound by them.
because the obligation to follow a practice derives its force from the fact that
the practice is followed with a high degree of uniformity. The idea of the
doctrine of precedent creating an occasion for judicial lawbreaking is treated
by Cross and Harris with near bewilderment. The question of what ought to
be done about a judge who flagrantly abuses the doctrine does not tax them
for the simple reason that judges do not behave thus. Although a formal
sanction could be applied to a judge for eschewing precedent, the likelihood
of this occurring is remote because concerns about reputation and fear of
informal criticism motivate judges to treat precedents as binding upon them.
There is nothing nave about Cross and Harriss assessment. The rules of
precedent are prudential rules; judges apply them so as to maintain a system
of case-law rather than fear breaking them in case they are punished. Where
judges do not wish to follow a precedent it is commonly assumed that they
will either distinguish the precedent from the present case or, when
permissible, overrule the precedent on the basis of an especially compelling
reason or set of reasons. Neither judges nor jurists pay much attention to the
question of what should happen to the judge who is manifestly disrespectful
towards and neglectful of precedent, probably because that judge rarely if
ever exists outside fictional literature. For the classical legal positivist,
however, the idea that precedents bind future decision makers is intelligible
only if there is stipulated a sanction which will be prima facie applicable to
those decision makers when they ignore precedents.
Toomey,, 6-10-2014, "Too Big To Comply? NSA Says Its Too Large, Complex to
In an era of too-big-to-fail banks, we should have known it was coming: An intelligence agency too big to rein in and brazen enough to say
so. In a remarkable legal filing on Friday afternoon, the NSA told a federal court that its spying operations are too massive and technically
collection of Americans' private data. Recently, the plaintiffs in that case have fought to ensure that the NSA is preserving relevant evidence
a standard obligation in any lawsuit and not destroying the very data that would show the agency spied on the plaintiffs' communications.
Court's June 5 Order would be a massive and uncertain endeavor because the NSA may have to shut down all databases and systems that
contain Section 702 information in an effort to comply. For an agency whose motto is "Collect It All," the NSA's claim that its mission could be
endangered by a court order to preserve evidence is a remarkable one. That is especially true given the immense amount of data the NSA is
known to process and warehouse for its own future use. The NSA also argued that retaining evidence for EFF's privacy lawsuit would put it in violation of other
rules designed to protect privacy.
But what the NSA presents as an impossible choice between accountability and privacy is actually a false one.
Surely, the NSA with its ability to sift and sort terabytes of information can devise procedures that allow it to preserve the plaintiffs' data
here without retaining everyone's data. The crucial question is this: If the NSA does not have to keep evidence of its spying activities, how
the new
assertions continue the NSA's decade-long effort to
evade judicial review at least in any public court. For years, in cases
like the ACLU's Amnesty v. Clapper, the NSA evaded
review by telling courts that plaintiffs were
speculating wildly when they claimed that the agency
can a court ever test whether it is in fact complying with the Constitution? Perhaps most troubling,
electronic dragnet from the agencys constantly expanding set of surveillance targets, frequently
neglecting to remove targets from surveillance lists even after they are known to the agency to be
USP or other unauthorized targets. The reports make clear that NSA agents have enormous
leeway to spy on targets of their choosing, and that the already minor restrictions on spying
stipulated by the Foreign Intelligence Surveillance Act are not seriously enforced. Making a
mockery of claims that the agency is implementing greater transparency,
huge portions of the reports are either redacted entirely or redacted to the
point of being completely unintelligible. In one report, immediately under the
heading Computer Network Exploitation, which refers to the US
governments hacking and electronic data mining programs, the first several
large paragraphs are completely redacted. All numbers referring to the
quantity of violations have been redacted. One report states, for instance,
that agents executed a REDACTED number of overly broad database
queries, which led to the unlawful targeting of USP. Ominous references to
the expansion of surveillance operations within the US appear in one of the
NSA reports, dated 2010. After a lengthy redaction, the report states, If
approved, this change [text containing referent completely redacted] would
align NSA/CSSs procedures with the Federal Bureau of Investigations (FBI)
procedures, which permit such searches. Brushing aside the overwhelming
evidence provided by Edward Snowdens leaks and substantiated in its own
reports, the NSA claims in a statement on the documents that the vast
majority of compliance incidents involve unintentional technical or human
error. The NSA goes to great lengths to ensure compliance with the
Constitution, laws and regulations, the official NSA statement reads. In
reality, the NSAs own documents further substantiate the mountain of evidence showing that
the agency is responsible for systematic crimes against US and international law.
that it can fairly be said that this critical element of the overall ... regime has
never functioned effectively.'' The Electronic Frontier Foundation, a free
speech and privacy rights group, sued to obtain the ruling after Senator Ron
Wyden, an Oregon Democrat who sits on the Senate Intelligence Committee,
fought last summer to declassify the basic fact that the surveillance court
had ruled that the N.S.A. had violated the Fourth Amendment of the
Constitution, which guards against unreasonable searches. In a statement,
Mr. Wyden - an outspoken critic of N.S.A. surveillance - said declassification of
the ruling was ''long overdue.'' He maintained that while the N.S.A. had
increased privacy protections for purely domestic and unrelated
communications that were swept up in the surveillance, the collection itself
''was a serious violation of the Fourth Amendment.'' Mark Rumold of the
Electronic Frontier Foundation praised the administration for releasing the
document with relatively few redactions, although he criticized the time and
the difficulty in obtaining it. But he also said the ruling showed the
surveillance court was not equipped to perform adequate oversight of the
N.S.A. ''This opinion illustrates that the way the court is structured now, it
cannot serve as an effective check on the N.S.A. because it's wholly
dependent on the representations that the N.S.A. makes to it,'' Mr. Rumold
said. ''It has no ability to investigate. And it's clear that the N.S.A.
representations have not been entirely candid to the court.'' A senior
intelligence official, speaking to reporters in a conference call, portrayed the
ruling as showing that N.S.A. oversight was robust and serious. He said that
some 300 N.S.A. employees were assigned to seek out even inadvertent
violations of the rules and that the court conducted ''vigorous'' oversight.
Hollow Hope DA
Even if the courts rule progressive, they will not and
cannot enact actual social change they will leave
loopholes and lower institutions will refuse to comply
legal history analysis proves litigation is a hollow hope
Rosenberg 5 (Dr. Gerald Rosenberg, Associate Professor of Political
Science and Lecturer in Law, University of Chicago, B.A., Dartmouth College,
1976; M.A., Oxford University, 1979; J.D., 1983, University of Michigan; Ph.D.,
1985, Yale University, Courting Disaster: Looking for Change in All the Wrong
Places, 54 Drake Law Review 795 (2005),
http://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?
article=2922&context=journal_articles) //RL
the years immediately preceding the decision. But they did so unevenly, with
abortion services widely available in some states and virtually unobtainable
in others. What explains both the increase in the number of legal abortions
and the uneven availability of the constitutional right Roe proclaimed? The
number of legal abortions increased after Roe because there was public
support for legal access to abortion, and demand for the service. A national
abortion repeal movement was flourishing with widespread support among
relevant professional elites and rapidly growing public support. By the eve of
the Court's decisions, eighteen states had reformed their restrictive abortion
laws to some degree. Indeed, in 1972, the year before the decision, there
were nearly 600,000 legal abortions performed in the U.S.96 To the extent
that Roe increased women's access to legal 93. ADAM FAIRCLOUGH, To
REDEEM THE SOUL OF AMERICA: THE SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE AND MARTIN LUTHER KING, JR. 21 (1987). 94. MARTIN LUTHER
KING, JR., WHY WE CAN'T WAIT 157 (1963). 95. Roe v. Wade, 410 U.S. 113
(1973). For an extensive exploration of Roe's mixed record of efficacy, see
ROSENBERG, supra note 4, at 175-201. 96. ROSENBERG, supra note 4, at
180 tbl.6.1. [Vol. 54 HeinOnline -- 54 Drake L. Rev. 810 2005-2006 Courting
Disaster abortion it did so because a grass-roots political movement had won
many legislative victories and had dramatically influenced both elite and
public opinion. On the other hand, Roe faced the same problem as
Brown-the existing institutions necessary to implement the
decisions (hospitals in the case of abortion) refused to do so. Indeed,
the overwhelming majority of both public and private, short-term, nonCatholic hospitals, have never performed an abortion.97 Like public schools
and desegregation, the existing institutions ignored the law. Constitutional
rights were protected under law, but denied in practice. However, in
Doe v. Bolton,98 the companion case to Roe, the Court struck down Georgia's
requirement that all abortions be performed in accredited hospitals. 99 This
allowed market forces to meet the demand for abortion services by opening
abortion clinics. Pro-choice activists, feminists, and doctors, who wanted to
expand their practices, were relatively free to respond to the demand. Clinics
could and did open to implement the decision. The problem with market
mechanisms is that they implement rights unevenly. This is
principally because they are dependent on local beliefs and culture.
In places where political leaders or large segments of the population oppose
abortion, it is less likely that such clinics will open. Thus, the availability of
abortion services varies widely across the country. Considering that the Court
has held that women have a fundamental constitutional right to obtain
abortions, the drawbacks to the market mechanism as a way to implement
constitutional rights are important. The availability of a market mechanism
can help implement Court decisions, but cannot guarantee them. In addition
to only providing limited access to legal abortion, Roe, like Brown, appears to
have strengthened the losers in the case-the antiabortion forces-and
weakened the winners. The fledgling anti-abortion movement grew
enormously after Roe and the pro-choice movement that had been able to
change laws in eighteen states collapsed. One of the results of the collapse
to join the list. What happened? The answer is simple. Same-sex marriage
proponents had not built a successful movement that could persuade their
fellow citizens to support their cause and pressure political leaders to change
the law. Without such a movement behind them, winning these court cases
sparked an enormous backlash. They confused a judicial pronouncement of
rights with the attainment of those rights. The battle for same-sex marriage
would have been better served if they had never brought litigation, or had
lost their cases. Now, they must either convince majorities in more than onethird of the states to remove the constitutional prohibitions on same-sex
marriage that have just been added or hope that the U.S. Supreme Court will
strike down prohibitions on same-sex marriage as unconstitutional. This is a
daunting task-one that ought not to have been faced. IV. WHEN WILL THEY
EVER LEARN? RETURNING TO PAST UNDERSTANDINGS The sad story of
the turn to litigation by same-sex marriage proponents illustrates
the current Progressive failure to understand that successful social
change requires building social movements. From Brown to Roe to
Goodridge the Progressive agenda was hijacked by a group of elite, welleducated and comparatively wealthy lawyers who uncritically believed that
rights trump politics and that successfully arguing before judges is equivalent
to building and sustaining political movements. Litigation is an elite,
class-based strategy for change. 107 It is premised on the notion
that it is easier to persuade similarly educated and wealthy lawyers
who happen to be judges of certain liberal principles than to
organize everyday citizens. That might be true but without broad
citizen support change will not occur. Litigation substitutes symbols for
substance. The collapse of the pro- 107. As Alexis de Tocqueville noted more
than a century and a half ago, lawyers are elitist by training. He wrote:
"hidden at the bottom of a lawyer's soul one finds some of the tastes and
habits of an aristocracy.... [American lawyers] conceive a great distaste for
the behavior of the multitude and secretly scorn the government of the
people." ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 243 (J.P. Mayer
& Max Lerner eds., George Lawrence trans., Harper & Row 1966) (1848).
20061 HeinOnline -- 54 Drake L. Rev. 813 2005-2006 Drake Law Review
choice movement after Roe is a perfect illustration as it remains the case
that for many women abortion services are difficult to find. Similarly, the
growing re-segregation of the nation's public schools is occurring at a time
when Brown has achieved almost mythical, symbolic status. The danger of
celebrating a symbol is that it can lead to a sense of self-satisfaction and
insensitivity to actual practice. Seen in this light, Brown is "little more than
an ornament, or golden cupola, built upon the roof of a structure found
rotting and infested, assuring the gentlefolk who only pass by without
entering that all is well inside. '10 8 Celebrating legal symbols encourages us
to look to legal solutions for political and cultural problems. Without political
support, court decisions will not produce social change. To valorize lawyers
and courts encourages reformers to litigate for social change. But if political
support is lacking, the effect of this vision is to limit change by deflecting
claims for reform away from substantive political battles, where success is
possible, to harmless legal ones where it is not. In this way, courts play a
deeply conservative ideological function in defense of the status quo. When
social reformers succumb to the "lure of litigation" they forget that deepseated social conflicts cannot be resolved through litigation. Today, there is
some hope that Progressives may be turning away from litigation as a
strategy for change. The cause, alas, is not a re-learning of historical lessons
and an understanding of the limitations on courts and the need for political
mobilization. Rather, it is a realization that the current Supreme Court is
unlikely to promote progressive principles. If this were the only effect of a
conservative Court it would be a good thing. The problem, of course, is that
even if courts are limited in their ability to help Progressives, they have more
room to do damage. Courts are not symmetrically constrained from
furthering both progressive and conservative change. This is because
typically Progressives are asking courts to require change while
Conservatives are supporting the status quo. Further, it is easier to dismantle
Progressive programs than to create them. For example, with Justice Alito
replacing Justice O'Connor, affirmative action plans may be found to be
unconstitutional. We are now in a position where courts can be an obstacle to
change. None of this means that law is irrelevant or that courts can never
further the goals of the relatively disadvantaged. For the civil rights 108.
Michael E. Tigar, The Supreme Court 1969 Term-Foreword: Waiver of
Constitutional Rights: Disquiet in the Citadel, 84 HARV. L. REV. 1, 7 (1970).
Tigar wrote these words specifically about the Warren Court's criminal rights
decisions but they are more generally applicable. [Vol. 54 HeinOnline -- 54
Drake L. Rev. 814 2005-2006 Courting Disaster movement, for example,
courts played an important role in keeping the sitin movement going, ending
the Montgomery bus boycott by providing the boycotters with leverage,
furthering school desegregation by threatening to cut off federal funds under
Title VI, and upholding affirmative action programs. But in each case courts
were effective because a political movement was supporting change. The
analysis does mean that courts acting alone, as in Brown or Goodridge, are
structurally constrained from furthering the goals of the relatively
disadvantaged. As Progressives look to the future, they must
understand that American courts are not all-powerful institutions.
They were designed with severe limitations and placed in a political
system of divided powers. To rely on litigation rather than political
mobilization, as difficult as it may be, misunderstands both the limits of
courts and the lessons of history. It substitutes symbols for substance and
clouds our vision with a naive and romantic belief in the triumph of rights
over politics. And while romance and even naivete have their charms,
they are no substitute for substantive change.
In the 1960s and 1970s, while government at all levels took steps to harass
civil rights and antiwar activists, the Court became somewhat more
protective of political dissent. 67 However, the level of protection must not
be overstated. It was also the case that the federal government engaged
in massive surveillance of the lawful political actions of countless
Americans, and the Supreme Court upheld the program in 1972 in
Laird v. Tatum. 68 Those who publicly dissented against the war in
Vietnam, and even those who did not-such as parents, relatives, and friends
of protesters-ran the risk of government surveillance and harassment. 69
One must also remember that it was not until 1965 that the U.S. Supreme
Court first invalidated a congressional act on First Amendment free speech
grounds.70 64. See Herbert H. Hyman, England and America: Climates of
Tolerance and Intolerance- 1962, in THE RADICAL RIGHT 227, 231 (Daniel Bell
ed., 1963) (writing about the United Kingdom, but his statements apply to
France as well). 65. Robert A. Dahl, Epilogue to POLITICAL OPPOSITIONS IN
WESTERN DEMOCRACIES 387,391 (Robert A. Dahl ed., 1966). 66. MARTIN
SHAPIRO, FREEDOM OF SPEECH: THE SUPREME COURT AND JUDICIAL REVIEW
109 (1966). 67. See generally ROSENBERG, supra note 4 (examining social
change in the 1960s and 1970s and both the courts' role and governmental
reactions). 68. Laird v. Tatum, 408 U.S. 1 (1972); see generally Developments
in the Law: The National Security Interest and Civil Liberties, 85 HARV. L. REV.
1133, 1133 (1972) (discussing the extent of government surveillance). 69.
See INTELLIGENCE ACTIVITIES AND THE RIGHTS OF AMERICANS, S. REP. No.
94-755, at 165-82 (1976) (discussing the overbroad scope of domestic
intelligence gathering by the federal government). 70. Lamont v. Postmaster
Gen., 381 U.S. 301, 307 (1965) (invalidating an act requiring addressees to
affirmatively notify post office of their desire to receive foreign communist
political propaganda). [Vol. 54 HeinOnline -- 54 Drake L. Rev. 804 2005-2006
Courting Disaster And, of course, historically, the First Amendment
was entirely useless in protecting the speech rights of AfricanAmericans. 7 ' Given the Court's historic support of governmental
repression of dissident speech, how did criticism of the Vietnam War flourish,
and how has muted criticism of the War in Iraq been protected? The answer
is that both elites and regular citizens were divided over both wars,
the Constrained Court view maintains that courts will generally not be effective producers of significant
over the allocation and distribution of resources, the use of property, is protected (Miller 1968). "Rights" to
judicial discretion is
bound by the norms and expectations of the legal culture. These two
parameters, believers in the Constrained Court view suggest, present a
problem for litigators pressing the courts for significant social reform because
most such litigation is based on constitutional claims that rights are being denied.; An individual or
group comes into a court claiming it is being denied some benefit, fit, or
certain minimums, mums, or equal shares of basic goods, are not. Further,
judges that compose them, even if sympathetic to social reform form plaintiffs, may be unwilling to risk
Justice from 1964 to 1970, and known as a judge open to new ideas, wrote of the "very caution of the
judicial process" (1977, 7). Arguing that "a judge must plod rather than soar," Traynor saw that the
"greatest judges" proceed "at the pace of a tortoise that steadily makes advances though it carries the
tends to dissipate significant social reform by making ing appropriate remedies unlikely. This can occur,
McCann (1986, 200) points out, because policy-based litigation aimed at significant social reform is usually
"disaggregate(di ... into discrete conflicts among limited actors over specific individual entitlements."
Remedial decrees, it has been noted, "must not confuse what is socially or judicially desirable with what is
there is the danger that litigation by the few will replace political
action by the many and reduce the democratic nature of the American polity .
James Bradley Thayer, writing in 1901, was concerned that reliance on litigation would sap
the democratic process of its vitality. He warned that the "tendency of a
common and easy resort" to the courts, especially in asking them to
invalidate acts of the democratically accountable branches, would "dwarf the
political capacity of the people" (Thayer 1901, 107). This view was echoed more recently by
McCann, who found that litigation-prone activists' "legal rights approach to
expanding democracy has significantly narrowed their conception of political
action itself" (McCann 1986, 26). Expanding the point, McCann argued that "legal tactics not
only absorb scarce resources that could be used for popular mobilization ...
[but also] make it difficult to develop broadly based, multiissue grassroots
roots associations of sustained citizen allegiance " (McCann 1986, 200). For these
More broadly,
reasons, the Constrained Court view suggests that the nature of rights in the U.S. constrains courts from
Unlike
Congress and the executive branch, Hamilton argued, the federal courts were
utterly dependent on the support of the other branches and elite actors . In
other words, for Court orders to be carried out, political elites, electorally
accountable, must support them and act to implement them . Proponents of the
the executive arm even for the efficacy of its judgments" (The Federalist Papers 1961, 465).
Constrained Court view point to historical recognition of this structural "fact" of American political life by
early Chief Justices John Jay and John Marshall, both of whom were acutely aware of the Court's limits.12
President Jackson recognized these limits, too, when he reputedly remarked about a decision with which he
the
unwillingness of state authorities to follow court orders, and the need to send
did not agree, "John Marshall has made his decision, now let him enforce it." More recently,
federal troops to Little Rock, Arkansas, to carry them out, makes the same
point. Without elite support port (the federal government in this case), the
Court's orders would have been frustrated . While it is clear that courts can stymie change
(Paul 1960), though ultimately not prevent it (Dahl 1957; Nagel 1965; Rosenberg 1985), the
Constitution, in the eyes of the Constrained Court view, appears to leave the
courts few tools to insure that their decisions are carried out. If the separation of
powers, and the placing of the power to enforce court decisions in the executive branch, leaves courts
practically powerless to insure that their decisions are supported by elected and administrative officials,
then they are heavily dependent on popular support to implement their decisions. If American citizens are
aware of Court decisions, and feel duty-bound to carry them out, then Court orders will be implemented.
proponents of the Constrained Court view point out that survey data
suggest that the American public is consistently uninformed of even major
Supreme Court decisions and thus not in a position to support them (Adamany
1973; Daniels 1973; Dolbeare 1967; Goldman and Jahnige 1976). If the public or political elites
are not ready or willing to make changes, the most elegant legal reasoning
will be for naught. This constraint may be particularly powerful with issues of
significant social reform. It is likely that as courts deal with issues involving contested values, as
issues of significant social reform do almost by definition , they will generate opposition. In
turn, opposition may induce a withdrawal of the elite and public support
crucial for implementation. Thus, proponents of the Constrained Court view suggest that the
contested nature of issues of significant social reform makes it unlikely that
the popular support necessary for implementation mentation will be
forthcoming.
However,
NAACP Inc. Fund, admits that by the time of Brown there "was a current of history and the Court became
growing social, political, and economic forces of the time, the government's civil rights litigator Elman put
it this way: "In
experience, and education still find a large gap (Reskin and Hartmann 1986, 10-11, 70-73, 123; Blau 1984,
133-39). In terms of education, the Women's Bureau found that "in 1974 women with 4 years of College
had lower incomes than men who had only completed the 8th grade" and "fully employed women high
school graduates (no college) had less income on the average than fully employed men who had not
female college graduates made less than male high school graduates and women with graduate education
made less than male college dropouts! (The American Woman 1988, 389). And a recent study by the Rand
Corporation found that if "current trends continued women would earn only 74 percent of men's income by
a senior official of the Census Bureau found that the wages of white women entering the job market in
1980 were further behind the wages of comparable white men than they were in 1970 (Pear 1984). 12.
This 1978 study corroborated one done by the commission in 1974 which
found the gap remaining large even when age, skill level, race, and part-time
work were controlled for (USCCR 1974c, 5). The lack of Court efficacy also holds in the area of
comparable worth. Despite litigation, where comparable worth policies have been
instituted, they have been the result of collective bargaining and state
government action, not litigation. From California and Washington to Minnesota, comparative
worth policies have been instituted "through the legislatures and private negotiation," not courts (Clauss
Gunther there had been considerable activity in the states, which themselves were under pressure from
unions and women's groups" (Blumrosen 1984, 111). As of September, 1983,
Political Capital DA
<<PLAN UNPOPULAR / CONTROVERSIAL>>
Supreme Court justices have finite political capital
controversial decisions will be followed by moderate
decisions and avoidance of other major issues
Grosskopf and Mondak, Profs of Poli Sci Long Island U and U of Illinois, 1998
(Anke Grosskopf, Assistant Prof of Political Science @ Long Island University, & Jeffrey
Mondak, Professor of Political Science @ U of Illinois, 1998, Do attitudes toward
specific supreme court decisions matter? The impact of Webster and Texas v Johnson
on Public Confidence in the Supreme Court Political Research Quarterly, vol. 51 no 3
633-54 September1998)
The existence of a strong link between basic values and diffuse support does
not necessarily preclude a role for specific decisions, particularly when we
seek to understand how support comes to change over time (e.g., Caldeira
and Gibson 1992: 658-61). We believe that any claim that the Supreme
Court is fully immune to backlash against controversial decisions
can be rejected on a prima facie level. First, consider the extreme
case. Were the Supreme Court to make its occasional
blockbusters-Brown v. Board of Education, Roe v. Wade, Texas v.
Johnson, etc.-the norm by routinely ruling on the thorniest social
The U.S. Supreme Court rejected Troy Davis' last appeal today, the Los
Angeles Times reports, permitting Georgia to proceed with the death penalty.
The justices left no explanation for their decision. Davis conviction and
his death sentence have generated a great deal of controversy. Nine
witnesses testified to Davis guilt during his trial in Georgia. Since then, seven
of them have recanted their testimony. Davis attorneys say that the real
culprit was Coles, who was one of the witnesses who testified against Davis,
according to the Associated Press. "The Supreme Court's decision is truly
shocking, given that significant evidence of Davis' innocence will never have
a chance to be examined," said Larry Cox, executive director of Amnesty
International USA. "Faulty eyewitness identification is the leading cause of
wrongful convictions, and the hallmark of Davis' case." According to the Los
Angeles Times, the justices may have concluded that the prior guilty
judgements from the state of Georgia were correct. Georgia was scheduled
to execute Troy Davis by lethal injection on Sept. 23, but the Supreme Court
intervened and granted a stay of execution with less than two hours to spare.
Davis had been convicted for shooting and killing 27-year-old off-duty police
officer Mark MacPhail in a clash in a Burger King parking lot in 1989. MacPhail
allegedly approached Davis and Daviss friend Sylvester Red Coles after the
two got into a skirmish with a homeless man, the Associated Press reports.
The trial lacked physical evidence and no weapons had been discovered, CNN
reports. The witnesses who retracted their statements said that they were
mistaken, they feared retribution from the man they say actually killed
MacPhail or that police pressured them into fingering Davis, according to
CNN. Former President Jimmy Carter, South African Archbishop
Desmond Tutu, Pope Benedict XVI and Rev. Al Sharpton have all
called on the state of Georgia to spare the life of Davis, and have
called for a new trial. Celebrities including Susan Sarandon, Harry
Belafonte and the Indigo Girls, Congressman John Lewis, D-Ga., and former
U.S. lawmakers Bob Barr and Carolyn Moseley Braun have also stood in
support of Davis. Amnesty International has coordinated rallies inside and
outside of the United States in Daviss defense, CNN reports. Sources in this
Story Los Angeles Times: Supreme Court clears way for Georgia execution
The Atlanta Journal-Constitution: Supreme Court issues stay of execution for
Davis Associated Press: Georgia set to execute man for officer's death CNN:
High court to rule whether convicted cop killer dies Georgia Supreme Court:
Davis v. the State Atlanta Journal-Constitution: Troy Davis may be innocent
The American Prospect: NO JUSTICE FOR TROY DAVIS. Reason: Is Georgia
About to Execute an Innocent Man? findingDulcinea: On this Day: Illinois
Governor Commutes 167 Death Sentences Death Penalty Information Center:
Causes of Wrongful Convictions But the prosecutors claim that the evidence
still points to Davis culpability. Anneliese MacPhail, the mother of the fallen
police officer, said, Troy Davis was judged by his peers. All the courts have
found him guilty. It was proven he was guilty. Please let us have some peace.
Let Mark rest in peace. Let justice be done. The Georgia Supreme Court has
turned down Davis insistence for a new trial twice, and rejected his appeal
by a 6-1 vote to stay the execution before the U.S. Supreme Court
intervened, according to the AP. Since 1973, the state of Georgia has
executed 42 other inmates. Opinion & Analysis: Davis fate The Georgia
Supreme Court had refused to grant Davis a stay, citing evidence from the
trial that appeared to pinpoint Davis as the man who murdered MacPhail.
According to the court, evidence from the trial indicated that MacPhail chased
after Davis and Coles. Coles then allegedly stopped, and MacPhail continued
to chase Davis. Davis then reportedly shot MacPhail, stood over the police
officer smiling and fired again. The state Supreme Court rejected the
argument of Davis lawyers that the execution should be stayed because so
many of the trial witnesses have recanted their testimony. According to the
Court, such Declarations made after the trial are entitled to much less
regard than sworn testimony delivered at the trial, because, among other
reasons, memory is more likely to change over time. Davis lawyers argued
that his situation was extraordinary, but the Court called that argument
unpersuasive. A number of op-ed pieces disagreed with the Georgia
Supreme Courts opinion. Cynthia Tucker of the Atlanta Journal-Constitution
argues that this case is less about justice and more about the state of society:
If Troy Anthony Davis had occupied a higher rung on the social
ladder, he probably would not have been convicted of murder in the
August 1989 shooting death of a Savannah police officer. She
accuses the Savannah police of pressuring witnesses to give them the
testimony they needed. Tucker also cites data indicating that More than 75
percent of the people exonerated by DNA evidence had been falsely
convicted by bad eyewitness testimony in their original trials. Adam Servwer
of the American Prospect makes a similar argument, claiming in strong words
that race has directly played into the Davis case. This is the logical
extension of holding black people accountable for urban crime, rather than
the individuals themselves. In this scheme of thought , as long as a black
man pays for the crimeany one will do. This is, quite plainly, a
lynching, of the decidedly more fatal low-tech variety. Radley Balko
of Reason magazine does not know whether Davis is truly guilty, and he
asserts the court cannot be sure either, because of the recent recantations.
It looks as if theres at least enough doubt that we cant say for sure, says
Balko. And that ought to be more than enough doubt to hold off on the
execution.
Link
Anthony Kennedy is the only vote on the Supreme Court
that matters and recently hes made some risky liberal
decisions
Hasen 7/7 (Richard L. Hasen is a professor of law and political science at
University of California Irvine, Richard L. Hasen: More than ever, it's a
Kennedy court, The Morning Call, July 7th, 2015,
http://www.mcall.com/opinion/mc-supreme-court-justice-kennedy-infleneceyv-0708-20150707-story.html) //RL
Forget the debate over whether the Supreme Court has taken a liberal turn. It
is not a liberal court or a conservative court. It's a Kennedy court. On
major constitutional and statutory questions, Justice Anthony M.
Kennedy's views matter more than anything else. Liberals do have
more to celebrate this term than in the recent past, from the same-sex
marriage and Obamacare decisions, to a major housing discrimination case,
to a surprising win for minority plaintiffs in a voting rights lawsuit. In those
cases, Kennedy was in the majority, and all but one Obamacare were
decided 5 to 4. But there were some victories for conservatives as well. The
court blocked a key environmental rule on mercury pollution. It upheld
Oklahoma's lethal injection method. And it rejected an attempt to put a Texas
voter identification law on hold, even though a federal court found that the
legislature intended to discriminate against minority voters. Kennedy was in
the majority in these rulings. Indeed, there were only a handful of important
cases this term in which Kennedy was on the losing side of a 5-4 split, such as
the Williams-Yulee case, in which Chief Justice John G. Roberts Jr. sided with
the four liberals against Kennedy and three conservatives to uphold Florida's
ban on judicial candidates personally soliciting campaign contributions.
cComments Got something to say? Start the conversation and be the first to
comment. ADD A COMMENT 0 Looked at over the long run, Kennedy's
influence seems even greater. Think of the Supreme Court's 5-4 decision in
the 2010 Citizens United case striking down the ban on corporate spending in
elections, which has opened the floodgates to super PACs and big money in
politics. Or consider the court's 5-4 decision in the 2013 Shelby County case,
which eviscerated a key provision of the Voting Rights Act. Kennedy was in
the majority in each instance. His power won't lessen any time soon.
Last week, the court said it would review a case that could kill public sector
unions, overturning long-standing precedent. Kennedy will probably cast the
crucial fifth vote. And, no doubt, the court's upcoming decision on how far
states can go in restricting abortion will depend on Kennedy's view of what
constitutes an "undue burden" on a woman's right to choose. It is no
surprise, as professor Nan Hunter of Georgetown Law School
remarked, that Supreme Court advocates often write their briefs for
an audience of one: Kennedy.
Impact
Empirically proven multiple legal loopholes allow the
Supreme Court to throw out cases, especially those that
have to do with minority rights
Kloppenberg 01 (Lisa A. Kloppenberg is Dean of the Santa Clara
University School of Law, Playing It Safe : How the Supreme Court Sidesteps
Hard Cases and Stunts the Development of Law, In Critical America.New
York : NYU Press. 2001, p.25-31) //RL
compil
Despite the time, money, and energy invested in the litigation over eight
years, the Court threw Yniguez out because it determined that the immediate
parties no longer had a live controversy over what Yniguez could say on the
job. This ruling was consistent with its mootness prece- dents and could
have been avoided if Ms. Yniguezs lawyers had filed the suit as a class action
composed of numerous state employees as plaintiffs, some of whom still
worked for Arizona at the time the case reached the Supreme Court. But their
client did not want to file a class action suit be- cause she did not want to
turn the English-Only issue into one of His- panics versus the English
speakers of Arizona. Moreover, class actions are not easy to pursue. They
require special procedural knowledge and often can be more expensive and
burdensome than ordinary litigation. Finally, the Supreme Court took the
unusual step of vacating the ear- lier Yniguez opinions, effectively erasing the
findings that the law was un- constitutional and destroying the prior victories
of those who opposed the English-Only law. Without much explanation, the
Court concluded that vacating the opinions was appropriate because the case
presented federalism concerns and exceptional circumstances. Many
people reacted strongly to the Courts decision. The mootness ruling, on the
heels of the long, complicated history of the Yniguez case, caused much
confusion and frustration among Arizona voters and others concerned with
the English-Only issue. As one editorial writer put it, Eight years after voting
to do the states business in English, Arizonans still dont know whether their
own judgment about how their own em- ployees should behave at work will
be allowed to become law by judges who dont pay a dime of Arizona taxes.
And they likely wont know for another couple of years.18 He continued:
Sadly, this decision did noth- ing to end the legal chaos. It only shifted the
battleground to the state courts . . . and left open a distinct possibility of
having to fight the war again in the federal court. Many Californians had
closely watched the lit- igation, in light of litigation challenging their own
recent anti-immigrant measure, Proposition 187. This measure, entitled Save
Our State, denied state services such as education and health care to those
suspected of being undocumented immigrants. After voters approved the law
in 1994, it soon faced court challenges. In 1996, Californians had also
enacted an initiative that limited affirmative action in public contracting,
Frequently, the persons or groups most likely to suffer from these unresolved
differences are members of political, racial, cultural, sexual, or religious
minority groups. The lack of guidance from the Court on constitutional law is also disturbing. When the Court does not promote
uni- form national constitutional interpretation, the content of Equal
Protec- tion or First Amendment rights will vary with a citizens
locale. Avoidance through Certification and the Avoidance Canon The Court
in Yniguez went beyond a simple mootness ruling, which it could have
completed in a few paragraphs, and gave a long lecture on how the lower
federal courts should have disentangled themselves from this volatile
controversy earlier. Justice Ginsburg, one of the Courts liber- als, wrote the
unanimous opinion. As a former Civil Procedure teacher, she is an expert on
jurisdictional technicalities. The Courts disdain for what it viewed as
procedural mistakes by the lower federal courts in this suit is thinly
disguised. The Court warned other federal courts to avoid federal
constitutional issues by sending novel state law issues like the interpretation
of the Ari- zona law to the state court system through certification.
Certification statutes allow a federal court to send state law issues to a
states highest court. In Yniguez, certification would mean that the Arizona
Supreme Court would have to figure out whether the English-Only law applies
only to official documents and acts like judicial opinions or more broadly to
government-employee speech. After a state supreme court ruling, the parties
return to the federal system for rulings on federal law issues. The opinion
closed on a hopeful note, awaiting the Ruiz decision, which the Court said
might greatly simplify the federal constitutional questions presented. In
Yniguez, the Supreme Court also reminded the lower federal courts
how certification can interact with the avoidance canon to deflect
diffi- cult constitutional controversies presenting federalism
concerns. The avoidance canon is a rule of statutory construction that
encourages judges to determine whether a law can be read in a narrow way
to contain it within constitutional bounds. The Yniguez Court implied that if
the lower federal courts or, preferably, the Arizona Supreme Court on certification had found the states narrowing interpretation persuasive, the litigants could have relied on that interpretation in federal court, and the law
could have been upheld on federal constitutional grounds. If, on certification, the Arizona court refused to apply the canon and read the law
broadly, only then would the federal courts need to face the constitu- tional
challenges. Of course, this reasoning contains interpretations of the
Constitution: it hints that a narrow reading of the English-Only law would not
offend the First Amendment or other constitutional provi- sions and that a
broader reading might. Those hints are not binding precedent. However, they
are an indirect way of expressing the constitu- tional thinking of some of the
justices and can thus constrain other courts without clearly changing the
content of the Courts constitutional precedents. The Court frequently shapes
the direction of constitutional law with such quasi-constitutional rulings. In
urging avoidance through certification, the Court highlighted the po- tential
importance of the English-Only issue for Arizona, the unsettled state law
question of the meaning of the new law, the attorney generals narrow- ing
construction, and the primary sponsors belated agreement with that
construction as reasons for avoidance. The Court concluded that the more
cautious approach of certification was better than a ruling on the merits,
particularly because of the federalism concerns posed. Federalism is the balance of powers between the national and state or local governments. The
Rehnquist Court in the 1990s went to great lengths to enlarge and protect the
areas in which states have autonomy to operate without federal over- sight,
as chapter 7 details. The Yniguez Court meant that the federal courts could
have avoided friction between the two court systems and potential error on
the state law issue through certification. The Court did not elaborate much
on how certification would build a cooperative judicial federalism, but it
probably reasoned that the lower federal courts could have shown more
respect for Arizonas legal, social, and political predicament by allowing the
Arizona court a chance to agree that the attorney generals narrow
construction of the English-Only law was the correct one. This might have
saved the statutes constitution- ality while also taking away much of its force
appeasing both sides of the controversy. Additionally, the Court wanted the
lower federal courts to avoid friction-generating error by construing the law
one way and then facing potential embarrassment and inconsistent rulings if
the Ari- zona court construed it differently. By giving the Arizona court the
first opportunity to speak, the Court hoped to foster Arizonas authority in this
controversy while also relieving the federal courts of pressure and
responsibility. Sixty years before Yniguez, the Court created an
abstention doctrine in order to avoid an Equal Protection challenge
brought by a railroad com- pany and black Pullman porters to a
Texas law which favored white con- ductors. As described in the
Introduction, the Court preferred that Texas courts first review the
state law issues, hoping to avoid federal constitu- tional rulings in
the socially sensitive area of race and gender rela- tions.24 The
Yniguez Court conceded the errors of Pullman abstention. It acknowledged
that this kind of abstention proved protracted and expen- sive in practice,
for it entailed a full round of litigation in the state-court system before any
resumption of proceedings in federal court. The Yniguez Court insisted that
certification will work better than abstention because it only requires one
round of litigation (in the states highest court) before proceedings resume in
federal court. Certification certainly might save the federal courts time,
energy, and resources. But the Court does not mention that certification still
imposes additional cost and delay on the litigants, as compared to remaining
in federal court and allowing the federal court to construe the scope of the
English-Only law. More- over, certification adds work to the state courts. Thus,
litigants may face long waits or hostility to certification requests in some
courts. Busy state courts do not always appreciate having controversies
delegated to them. For example, the Arizona Supreme Court put the related
Ruiz litigation on hold while Yniguez was pending. It did not have to do so; it
chose to await the federal systems outcome to discourage forum shopping
(when litigants shop around for the court, judge, jury, or law which they be-
lieve will be most favorable for them). The Arizona court also sought to
encourage uniform state and federal court interpretation of the English- Only
law by awaiting the outcome of the U.S. Supreme Courts ruling. If it was
anxious to rule definitively on the state law issues, the Arizona court could
have ruled on the laws construction (and even on its consti- tutionality)
before the U.S. Supreme Court issued its opinion. Indeed, the state supreme
court gets the last word on state law issues such as the scope of a state law
(assuming a court does not construe a law narrowly solely to evade federal
court review). So, even if the federal courts had all construed the law broadly,
the Arizona court could diverge on the state law question of interpretation
and find the attorney generals narrow construction persuasive after a federal
court ruling. The state supreme court could even have the last word on state
law after a ruling from the U.S. Supreme Court. Thus, any error in construing
state law made by a federal court is easily correctable. Further, the Yniguez
Court ignored that state supreme courts do not always welcome the
additional political pressure when sensitive issues are certified to them. The
Arizona court did not discuss this political concern when it put Ruiz on hold,
but few judges would think it appropriate to ac- knowledge that type of
pressure. Nevertheless, in an era of increasing at- tacks on judicial
independence and increasing use of initiatives for con- troversial lawmaking
in nearly half of our states, many elected state judges feel the pressure.
Although both state and federal judges face criti- cism for their unpopular
rulings, federal judges enjoy life tenure and are much more protected than
most state court judges. State judicial election and retention campaigns are
becoming more expensive and contentious. State judges have come under
attack for their rulings in criminal cases and for rejecting popular direct
democracy enactments. In such an at- mosphere, many judges try to avoid
appearing activist.25 It is easy to understand why supporters of the
English-Only law might read into Yniguezs cautionary warnings a
philosophy of federal court judicial restraint . The Courts unstated
premise seems to be that controversies that present federalism concerns are
best decided by the more politically responsive state court judges, not by
their life-tenured federal counterparts. Perhaps the justices reason that
Arizona voters would resent the judicial system less if their state courts
(rather than the federal courts) limited or voided the English-Only law.
Moreover, if vot- ers disagree with the Arizona Supreme Courts interpretation
of the English-Only law or their conclusion about its constitutionality, the vot-
ers will have redress at the polls. In other cases, the Supreme Court has been
explicit about basing avoidance techniques in part on the impor- tance of
protecting the federal courts from charges of interference with the will of the
voters or the products of the majoritarian political process. Thus, not only can
certification save the federal courts a lot of work, it can take some political
heat off the federal system by transfer- ring it to state courts. In Yniguez, if
certification had worked as the Court envisioned, the federal courts could
have saved a narrow version of the English-Only law, attributing the narrow
reading to state courts. Of course, the federal courts also could have done
that without the cost and delay of certification by using the avoidance canon
Elections
The next presidential election will replace four Supreme
Court justices even if they dont retire, natural factors
and mathematical models prove their seats will be
vacated anyway most recent analysis proves the link to
politics
Cilliza 7/14/15 (Chris Cillizza writes The Fix, a politics blog for the
Washington Post. He also covers the White House for the newspaper and Web
site. Chris has appeared as a guest on NBC, CBS, ABC, MSNBC, Fox News
Channel and CNN to talk politics, The massive stakes in the 2016 election, in
1 graphic, The Washington Post, July 14th, 2015,
http://www.washingtonpost.com/blogs/the-fix/wp/2015/07/14/a-reminder-ofthe-stakes-in-the-2016-election-in-1-graphic/) //RL
There has been considerable speculation -- and even some urging by
Democrats -- that Ginsburg and Stephen Breyer, who is 76, should retire
before President Obama's term expires, a move that would allow him to
appoint their replacements rather than wait until the uncertain outcome of
the 2016 election. That's not a new argument. Here's Randall Kennedy, a law
professor at Harvard University, making the case for retirement way back in
April 2011 in a New Republic piece: Justices Ruth Bader Ginsburg and
Stephen Breyer should soon retire. That would be the responsible thing for
them to do. Both have served with distinction on the Supreme Court for a
substantial period of time; Ginsburg for almost 18 years, Breyer for 17. Both
are unlikely to be able to outlast a two-term Republican presidential
administration, should one supersede the Obama administration following
the 2012 election. Seth Masket, writing in the Pacific Standard in 2014,
sounded a similar note: In short, Ginsberg and Breyer are on the left of a
sharply divided Court and they are not young. Ginsburg, in particular, is in
her eighties, has already suffered through a cancer battle, and has
experienced a range of injuries. What's more, the current partisan
arrangement allowing Democrats to dominate the justice selection process
may not last long. Democrats have around a 50 percent chance of holding
the Senate this year, and probably roughly similar odds of holding the White
House in 2016. Should the justices step down now, they could be replaced by
people of similar ideological persuasions. Waiting longer holds out a real
chance that they would be replaced by people well to the right of
them, tipping the Court's precarious balance on such issues as
abortion rights. The older justices, for their part, are generally tight-lipped
about their retirement plans. (They are, of course, tight-lipped about almost
everything.) Im concerned about doing the job full steam, Ginsburg told
MSNBC's Irin Carmon in February. Once I sense that I am slipping, I will step
down. This is a very intense job. "Ill know when Im not hitting on all eight
cylinders," Justice Antonin Scalia told New York magazine's Jennifer Senior in
2013. Whether or not they talk about it, the law of averages would
suggest that a few retirements at the Court are coming some time
soon. The average age at which Justices retire from the Supreme Court is
78.7, according to a 2006 study by the Harvard Journal of Law and Public
Policy. Ginsburg, Scalia and Anthony Kennedy are already past that average;
Breyer will be by the time the next presidential term begins. Looking at the
most recent departures from the Court provides a mixed bag. John Paul
Stevens left in 2010 at age 90. David Souter retired in 2009 at 70. Sandra
Day O'Conner stepped aside at 75. While the Court does much to promote
the idea that it is entirely separate from politics and political concerns, there's
some evidence that planning retirements based on the party affiliation of the
president does happen. "I think certainly its natural and an appropriate thing
to think about your successor," Stevens acknowledged in a 2014 interview.
Notice that I said "some evidence" in the paragraph above. Here's why: From
1953 to 2010, 46 percent of exiting Supreme Court justices left during a
presidency that shared their partisanship, according to a 2011 study from the
Quinnipiac Law Review. That means 54 percent didn't. (Math!) In the more
hyper-partisan political environment in which the Court (and all of us) now
reside, it's hard to imagine that the outcome of the 2016 election won't have
some impact on the go/no-go decisions of the likes of Breyer, Kennedy, Scalia
and Ginsburg. Given that, the stakes of the 2016 election are
remarkably high. Who wins the White House will not only shape the
country over the following four years but could well leave an impact
on the Court that stretches decades beyond that.
Prez PC
Presidents expend PC to get their nominees into the
Supreme Court
Johnson and Roberts 4 (Timothy R. Johnson is assistant professor of
political science, University ofMinnesota, Minneapolis, MN 55455
(tjohnson@polisci.umn.edu). Jason M.
Roberts is assistant professor of political science, University of Minnesota,
Minneapolis, MN 55455 (jroberts@polisci.umn.edu), Presidential Capital and
the Supreme Court Confirmation Process, The Journal of Politics, Vol. 66, No.
3, August 2004,
http://www.polisci.umn.edu/~tjohnson/MyPapers/JOP2004.pdf) //RL
Court Stripping
1NC
Congress is against curtailing surveillance
Trevor Timm, 3-14-2015, "Congress won't protect us from the surveillance
state they'll enhance it," Guardian,
http://www.theguardian.com/commentisfree/2015/mar/14/congress-wontprotect-us-from-the-surveillance-state-theyll-enhance-it
The same Senator who warned the public about the NSAs mass surveillance
pre-Snowden said this week that the Obama administration is still keeping
more spying programs aimed at Americans secret, and it seems Congress
only wants to make it worse.
In a revealing interview, Ron Wyden often the lone voice in favor of privacy
rights on the Senates powerful Intelligence Committee told Buzzfeeds John
Stanton that American citizens are being monitored by intelligence agencies
in ways that still have not been made public more than a year and a half after
the Snowden revelations and countless promises by the intelligence
community to be more transparent. Stanton wrote:
Asked if intelligence agencies have domestic surveillance programs of which
the public is still unaware, Wyden said simply, Yeah, theres plenty of stuff.
Wydens warning is not the first clue about the governments still-hidden
surveillance; its just the latest reminder that they refuse to come clean about
it. For instance, when the New York Times Charlie Savage and Mark Manzetti
exposed a secret CIA program collecting bulk records of international money
transfers handled by companies like Western Union into and out of the
United States in 2013, they also reported that several government officials
said more than one other bulk collection program has yet to come to light.
Since then beyond the myriad Snowden revelations that continue to pour
out the public has learned about the Postal Services massive
database containing photographs of the front and back of every single piece
of mail that is sent in the United States. There was also the Drug Enforcement
Administrations mass phone surveillance program wholly separate than the
NSAs in which phone records were retained even if there was no evidence
the callers were involved in criminal activity, according to the New York
Times. And recently, the Justice Departments national database to track in
real time the movement of vehicles around the US, reported by the Wall
Street Journal.
That there are still programs aimed at Americans that the Obama
administration is keeping secret from the public should be a front page
scandal.
Instead of exposing and informing these programs, however, Congress seems
much more intent on giving the intelligence agencies even more power. On
the same day that Wyden issued his warning, the Senate Intelligence
Committee passed its latest version of CISA, a supposed cybersecurity bill
Courts power to say what the law is with respect to the constitutionality of
those laws. And, if Congress had the power to immunize all of its laws from
judicial review, it is unclear why it then could not also immunize all or some
state laws from judicial review by the Supreme Court. The end result would
be the destruction of the Supreme Courts power of judicial review. In
addition, courts must have the authority to enjoin ongoing violations of
constitutional law. For example, Congress may not preclude courts from
enjoining laws that violate the First Amendments guarantee of freedom of
speech. If an Article III court concludes that a federal law violates
constitutional law, it would shirk its duty if it failed to declare the
inconsistency between the law and the Constitution and proceed accordingly.
Proposals to exclude all federal jurisdiction would, if enacted, open the door
to another, equally disastrous constitutional resultallowing Congress to
command the federal courts on how they should resolve constitutional
questions. In United States v. Klein, the Supreme Court declared that it seems
to us that it is not an exercise of the acknowledged power of Congress to
make exceptions and prescribe regulations to the appellate power . . . . What
is this but to prescribe a rule for the decision of a cause in a particular
way? . . . Can we do so without allowing that the legislature may prescribe
rules of decision to the Judicial Department or the government in cases
pending before it? We think not. . . . We must think that Congress has
inadvertently passed the limit which separates the legislature from the
judicial power.
2NC
Weakening domestic security leads to Court Stripping;
9/11 Proves
Ronald Weich, October 2001, "Upsetting Checks and Balances,"
https://www.aclu.org/sites/default/files/FilesPDFs/ACF47C9.pdf
Throughout American history, threats to domestic security have triggered
unjustified assaults on civil liberties. Today the most basic civil liberty of all
the right to judicial review of executive authority is uniquely vulnerable.
Anti-terrorism laws passed by Congress in 1996 and again in 2001 reflect
growing hostility to the role of judges in our constitutional system. This
report, planned long before September 11, focuses on the laws enacted five
years ago rather than the USA-PATRIOT Act signed into law by President Bush
last Friday. But enactment of the most recent anti-terrorism legislation
provides new urgency for considering a theme common to all these laws: the
role of the judiciary in curbing the excesses of executive authority in pursuit
of politically popular goals. The USA-PATRIOT Act has antecedents stretching
back to the earliest days of the Republic. The Alien and Sedition Acts of 1798,
criminal restrictions on speech during World War I, the internment of
Japanese-Americans following the attack on Pearl Harbor, and the blacklists
and domestic spying of the Cold War are all instances in which the
government was granted (or assumed) summary powers in a moment of
crisis, to the inevitable regret of later generations. The diminution of liberty
that accompanied these episodes was later understood as an overreaction to
frightening circumstances; each is now viewed as a shameful passage in the
nations history. After the immediate danger passed, it was recognized that
the government had already possessed ample powers to address the threats
at hand; the new tools were unnecessary at best and dangerous at worst.
Only rarely have the courts intervened to curb government authority during
periods of genuine insecurity, even though many Americans now wish they
had. In Schenck v. U.S. the Supreme Court unanimously upheld a World War Iera conviction for printing leaflets that urged Americans to resist the draft. In
the infamous case of Korematsu v. United States the Court declined to
overturn evacuation orders that led to the detention of thousands of
Japanese-Americans during World War II. Yet in Watkins v. United States and
related cases, the Court played a crucial role in limiting and eventually
discrediting the reach of Cold War-era red-baiting tactics. In any event, it was
a vital sign of Americas constitutional democracy that such court challenges
could be brought even in times of war and other perceived crises. Judicial
review is a cornerstone of our system of government. But the unbearably
tragic September 11 attacks, which toppled many cornerstones and caused
others to tremble, have led to enactment of an anti-terrorism bill that
undercuts the role of the judiciary in scrutinizing executive actions. Many
provisions of the USA-PATRIOT Act limit judicial review of law enforcement
activities altogether, or create the illusion of judicial review while
transforming judges into mere rubber stamps: Section 203 permits the
on school prayer; it missed coming to the House floor by only 32 votes (on a
petition to discharge it from the Judiciary Committee). In the new, more
conservative Congress, and with the tacit support - so far at least - of
President Reagan, that particular bill's chances of passage are ominous. So,
probably, are those of stripping bills on school busing and abortion. But won't
the Supreme Court itself declare such measures unconstitutional? Probably,
but if by the time they reach the Court Mr. Reagan has appointed one or two
new ''conservative'' justices, who can tell? And in the meantime, severe
damage could be done to what people have thought were constitutional
rights. Court-strippers make a constitutional argument, of sorts, based on
Article III, Section 2, which makes Supreme Court jurisdiction subject to ''such
exceptions ... as the Congress shall make.'' They say the framers adopted this
language precisely for situations where the Court might have ''usurped''
power or misinterpreted the Constitution. If so, nobody explained that
intention in the Federalist papers or other writings of the time. Most
constitutionalists, including many conservatives, believe the provision was
intended for lesser ''housekeeping'' purposes and deny that it gives Congress
authority to prevent the Court from making constitutional interpretations.
Representative Robert Kastenmeier of the House Judiciary Committee points
out that ''to do so would make (members of Congress) the sole judges of
what the Constitution is.'' And former Solicitor General Robert Bork of the Yale
Law School says the exceptions clause would have been an ''odd way for the
framers to have provided for Congressional revision of Court decisions,'' since
it would ''create chaos.'' It would do so by leaving state court decisions on
constitutional matters unreviewed by the Supreme Court. Thus, if the states
ruled variously on, say, abortion, American citizens in one state could have
constitutional rights not enforced in another. And any time Congress didn't
like Supreme Court rulings in some area - on gun legislation, for example - it
could strip the Court of jurisdiction in that field. In fact, of course, the
motivation for Court-stripping is political, not constitutional. Strippers like Mr.
Helms and Mr. Crane want to prohibit abortion and school busing and
overturn a 17-yearold ruling of the Court on school prayer. But they fear they
do not have the votes to pass a constitutional amendment on any of those
issues. So they are attempting to muscle their way through a back door
Congress has never before been willing to open - not when the same
disingenuous arguments were made for Court-stripping during the era of
McCarthyism, or when they were put forward after the landmark school
desegregation case of 1954. True conservatives should be first among those
opposed to this radical power grab.
EXECUTIVE ORDER
COUNTERPLAN
1NC Shell
The president of the United States should
Executive can take action to curtail surveillance
Straw 14 (Joesph Straw-Published: Friday, January 17, 2014, 6:58 AM
Updated: Saturday, January 18, 2014, 1:01 AM Obama calls for modest
constraints on NSA surveillance programs
http://www.nydailynews.com/news/politics/obama-calls-constraints-nsasurveillance-article-1.1582758 )
Regardless of how we got here, Obama said, the task before us now is
greater than simply repairing the damage done to our operations or
preventing more disclosures from taking place in the future. National
Security Agency leaker Edward Snowden revealed last year that the
government legally but secretly forces phone companies to turn
over billions of records on Americans calls and stores them. Obama
said the NSA will continue to vacuum up billions of U.S. phone call logs,
but the government will set up a new, outside entity to store the data.
We have to make some important decisions about how to protect
ourselves and sustain our leadership in the world while upholding the
civil liberties and privacy protections our ideals and our Constitution
require, he said in a speech at Justice Department headquarters.
Among his proposals: - Require the government to get approval from a
judge before it searches the data, except in emergencies. - Continue
NSA monitoring of foreign terror suspects email accounts, but with
protections for the privacy of data on innocent Americans caught in the
dragnet. - Establish a panel of public advocates, who would argue
before the secret Foreign Intelligence Surveillance Court to protect civil
liberties in high-profile cases. Obama asked Congress to approve the
establishment of the advocate panel. He would pursue the remainder of
his plans by executive order, he said, but welcomed Congress to make
his proposals law. Responding to one of Snowden's most embarrassing
revelations that the NSA has eavesdropped on the personal cell
phones belonging to close allies like German Chancellor Angela Merkel
Obama said that friendly leaders phones will not be tracked except
when doing so is critical to national security.
Prez Power NB
Executive orders increase presidential power
Risen 4 [Clay, Managing editor of Democracy: A Journal of Ideas, M.A. from
the University of Chicago The Power of the Pen: The Not-So-Secret Weapon
of Congress-wary Presidents The American Prospect, July 16,
http://www.prospect.org/cs/articles?article=the_power_of_the_pen]
In the modern era, executive orders have gone from being a tool largely
reserved for internal White House operations -deciding how to format
agency budgets or creating outlines for diplomatic protocol -- to a
powerful weapon in defining, and expanding, executive powe r. In
turn, presidents have increasingly used that power to construct and
promote social policies on some of the country's most controversial
issues, from civil rights to labor relations to reproductive health .
policy in the Middle East. Even within the Western alliance, there are
those who would probably see opportunities in a weakened US
presidency. France, for example, might feel that a less assertive US
might force the European Union to be more outward looking. But the
dangers of having a weak, insecure US presidency outweigh any
benefits that it might bring. US global economic and military power
cannot be wished away. A president with a shaky mandate will still
command great power and influence, only he will be constrained by his
domestic weakness and less certain about how to use his authority. This
brings with it the risks of miscalculation and the use of US power in a
way that heightens conflict. There are very few conflicts in the world
today which can be solved without US influence. The rest of the world
needs the United States to use its power deftly and decisively.
Unfortunately, as the election saga continues, it seems increasingly
unlikely that the next US president will be in a position to do so.
Solvency
Generic
Obama willing to push through an order-XO inevitable
Kumar 13
(March 19, 2013 Anita Kumar Obama turning to executive power to get what
he wants http://www.mcclatchydc.com/news/politics-government/whitehouse/article24746896.html)
President Barack Obama came into office four years ago skeptical of pushing the power of the White
as he launches his
second term, Obama has grown more comfortable wielding power to try to
move his own agenda forward, particularly when a deeply fractured, oftenhostile Congress gets in his way. Hes done it with a package of tools, some of which date to
House to the limit, especially if it appeared to be circumventing Congress. Now,
George Washington and some invented in the modern era of an increasingly powerful presidency. And hes
done it with a frequency that belies his original campaign criticisms of predecessor George W. Bush, invites
criticisms that hes bypassing the checks and balances of Congress and the courts, and whets the appetite
of liberal activists who want him to do even more to advance their goals. While his decision to send
his use of
executive orders and other powers at home is deeper and wider . He delayed the
drones to kill U.S. citizens suspected of terrorism has garnered a torrent of criticism,
deportation of young illegal immigrants when Congress wouldnt agree. He ordered the Centers for Disease
Control and Prevention to research gun violence, which Congress halted nearly 15 years ago. He told the
Justice Department to stop defending the Defense of Marriage Act, deciding that the 1996 law defining
marriage as between a man and a woman was unconstitutional. Hes vowed to act on his own if Congress
didnt pass policies to prepare for climate change .
there is no doubt that they can take action faster and more efficiently
than either Congress or the courts.Congress as a collective organization takes definitive
action through the legislative process, which is cumbersome, difficult to
navigate, and characterized by multiple veto points. Even when Congress can create and
sustain majorities at the subcommittee, committee, floor, and conference stages, the president can
use the veto power to raise the bar from a simple majority to a two-thirds
majority necessary to enact legislation over the presidents objection. The
question),
president, at the same time, has a trump card of great consequence in his struggle against Congress for control of
Similarly, the judiciary can overturn executive actions (as it did in rejecting Clintons 1995 replacement worker executive
order), but must wait for controversies to come to it, and definitive resolution can take years. Moreover, even after the
judicial decision, enforcement is a matter for the president. This theoretical perspective offered by the new institutional
economics literature provides a way of making sense of the wide range of executive orders issued over the years, and is
executive
orders are an instrument of executive power that presidents have used to
control policy, establish and maintain institutions, shape agendas, manage
constituent relationships, and keep control of their political fate generally. 128 Within the boundaries set by
statute or the Constitution, presidents have consistently used their executive power
often manifested in executive ordersto shape the institutional and political context in which
the centerpiece of my approach. The common theme I find in significant executive orders is control:
they sit. There are, to be sure, limits on what presidents can do relying solely on executive orders and executive power,
already signed off on the ISIL war twice. In a letter to Congress last
September, he stated that he was acting on the basis of a 13 year-old law
that authorized using force against the perpetrators of the September 11
attacks and those who harbored them, and a 12 year-old law that authorized
the invasion of Saddam Husseins Iraq. Remarks by administration officials
over the last year, along with a recently revealed White House document that
reads like a set of talking points, have added scant analytical meat to the
bones of that claim. The administration has produced no evidence that
Congress intended to authorize, or even foresaw, the ISIL war back in 2001
and 2002, because there isnt any. Unfortunately, Congress has not
meaningfully pushed back. A handful of members in both the House and
Senate have tried hard to force a debate and vote on the ISIL war, but neither
chamber has followed through despite what appears to be a majority in favor
of military action. Disagreements over the scope of the mission, some
members seeming desire to avoid accountability, and a general very
troubling sense that congressional authorization would have little practical
effect in light of the administrations claims of pre-existing authority, have all
entrenched the status quo.
Legality
XOs legal and Obama ready to act on domestic issues
Savage 12 (Charlie Savage April 22, 2012 Shift on Executive Power
Lets Obama Bypass
Rivalshttp://www.nytimes.com/2012/04/23/us/politics/shift-onexecutive-powers-let-obama-bypass-congress.html?_r=0)
Mr. Obama has issued signing statements claiming a right to bypass a
handful of constraints rejecting as unconstitutional Congresss
attempt to prevent him from having White House czars on certain
issues, for example. But for the most part, Mr. Obamas increased
unilateralism in domestic policy has relied on a different form of
executive power than the sort that had led to heated debates during his
predecessors administration: Mr. Bushs frequent assertion of a right to
override statutes on matters like surveillance and torture. Obamas not
saying he has the right to defy a Congressional statute, said Richard H.
Pildes, a New York University law professor. But if the legislative path is
blocked and he otherwise has the legal authority to issue an executive
order on an issue, they are clearly much more willing to do that now
than two years ago. The Obama administration started down this path
soon after Republicans took over the House of Representatives last year.
In February 2011, Mr. Obama directed the Justice Department to stop
defending the Defense of Marriage Act, which bars federal recognition of
same-sex marriages, against constitutional challenges. Previously, the
administration had urged lawmakers to repeal it, but had defended their
right to enact it. In the following months, the administration increased
efforts to curb greenhouse gas emissions through environmental
regulations, gave states waivers from federal mandates if they agreed
to education overhauls, and refocused deportation policy in a way that
in effect granted relief to some illegal immigrants brought to the country
as children. Each step substituted for a faltered legislative proposal.
Similarly, Posner and Vermeule believe presidents should not feel substantially constrained to follow the legal conclusions of the Department
of Justice, including those of the Office of Legal Counsel (OLC), even
though OLC was specifically organized and structured to provide authoritative legal analysis that binds the executive branch. During debates
over whether the War Powers ]) required President Obama to receive
congressional approval to continue beyond sixty days the United States
involvement in the NATO military operations against the Gaddafi
government in Libya, it was reported that OLC concluded the law did require congressional approval (which Congress never gave) in which
case the WPR also required the President to withdraw the uses of
military force the WPR lawyers from other parts of the execu- tive
branch, including the legal advisor to the State Department and the
White House Counsel, concluded that the WPR did not terms, the legal
question was whether the President was waging an illegal war (or, put
differently, conducting illegal military hostilities). And, when leaks
revealed the internal executive branch deliberative process through
which these issues were resolved, the President received a good deal of
criticism on both procedural and substantive grounds for not properly respecting OLCs role in determining the legal constraints that should
govern executive branch conduct. Applying the framework developed in
their book, Posner and Vermeule assert that these criticisms were
fundamentally misconceived. As they put it: A president need not have
or consult any legal advisers at all; nothing prevents Obama from
shutting down OLC and the other executive branch legal offices
altogether and deciding the administrations legal positions for other
words, according to Posner and Vermeule, no good reason exists that
presidents should be presumptively bound by OLCs le- gal conclusions
or that the public should be concerned about the processes by which the
President decides whether to follow OLC.
Congress Ineffective
Congress is weak on domestic surveillance, specifically
phone surveillance and internet surveillance, and has
little to no influence on domestic surveillance policies.
William Bendix and Paul J. Quirk, William Bendix is an assistant
professor of political science at Keene State College. His research focuses on
Congress, legislative deliberation, and homeland security and civil liberties
policies; Paul J. Quirk is the Phil Lind Chair in U.S. Politics and Representation
at the University of British Columbia and a former research associate at the
Brookings Institution. His work focuses on debate and deliberation in
Congress and the mass public. Secrecy and negligence: How Congress lost
control of domestic surveillance March 2, 2015
In enacting the USA PATRIOT Act just weeks after the 9/11 terrorist attacks,
Congress sought to enhance investigations against specific, named persons
suspected of terrorism. As voluminous documents leaked by whistleblower
Edward Snowden have revealed, however, the president and the National
Security Agency (NSA) have relied on that law to authorize the daily,
ongoing capture of all U.S. communication records. These documents
make clear that the Bush and Obama administrations ignored
statutory constraints to authorize exceptionally broad intelligencegathering programs. But from our review of legislative hearings and
debates on the PATRIOT Act over the last five years, along with numerous
declassified documents on surveillance, we find that unilateral action by the
executive branch was only partly to blame for unrestrained domestic spying.
After the relatively balanced and cautious provisions of the 2001 PATRIOT
Act, Congress virtually absented itself from substantive decision
making on surveillance. It failed to conduct serious oversight of
intelligence agencies, ignored government violations of law, and
worked harder to preserve the secrecy of surveillance practices than
to control them. Even after the Obama administration made the
essential facts about phone and email surveillance available in
classified briefings to all members, Congress mostly ignored the
information and debated the reauthorizations on the basis of
demonstrably false factual premises. Until the Snowden revelations, only
a handful of well-briefed and conscientious legislatorstoo few to be
effective in the legislative processunderstood the full extent of domestic
intelligence gathering. We describe and explain Congresss deliberative
failure on phone and Internet surveillance policy. We show that along
with a lack of consistent public concern for privacy, and the
increasing tendency toward partisan gridlock, Congresss
institutional methods for dealing with secret surveillance programs
have undermined its capacity to deliberate and act effectively with
respect to those programs. Although the current political environment is
hardly conducive to addressing such problems, we discuss long-term goals for
institutional reform to enhance this capacity. We see no easy or decisive
institutional fix. But without some structural change, the prospects look dim
for maintaining significant limitations on investigatory intrusion in an era of
overwhelming concern for security.
policies; Paul J. Quirk is the Phil Lind Chair in U.S. Politics and Representation
at the University of British Columbia and a former research associate at the
Brookings Institution. His work focuses on debate and deliberation in
Congress and the mass public. Secrecy and negligence: How Congress lost
control of domestic surveillance March 2, 2015
Our account of the development of the metadata surveillance
programs centers on Congress and its interactions with several
institutionsthe president, the FISA Court, and the Justice
Department, among othersand proceeds through several phases. We
begin with brief theoretical remarks on the central institutional properties
that drive the account. We argue that Congress as an institution has
great difficulty acting in any consistent, balanced way to protect
privacy interests on surveillance issues. On one hand, when setting
broad priorities in general terms, it attaches considerable weight to privacy
interests. On the other hand, when faced with specific issues of
investigatory authority, it readily makes sweeping, indiscriminate
sacrifices of those same interests (privacy)even without distinct
evidence of serious threat. The lack of consistency in defending
privacy interests has several sources. Most fundamental, legislators reflect
the attitudes and demands of their constituencies. The American public has
generally been quite willing to surrender privacy rights for the sake of
enhanced security, against even unspecified, highly indefinite terrorist
threats.1 In addition, there are generally no well-organized, powerful
constituencies for privacy interests.
has yet to reconsider the issue. Republicans have been largely against further
campaign disclosure rules.
The Dream Act which would have inched the immigration reform
agenda forward was only brought up as an amendment in the final hours before Congress
adjourned in order to help the beleaguered campaign of Harry Reid. The amendment was
defeated. Like other initiatives of importance to liberals and progressives, Obama signaled
willingness to weaken the Freedom of Choice Act before it even began to be seriously considered.
When Congress refused to take up Don't Ask Don't Tell, progressives
wondered why the President simply didn't end it by Executive Order.
And, there has been an ongoing frustration among Black leaders that
Obama simply refuses to embrace the idea that the "state of
emergency" in urban Black communities across the country can be
ameliorated by targeting jobs and economic programs to address
the crisis. If you want your base to be "enthusiastic," you can't take
it for granted or admonish your supporters to "stop whining" when
they complain about the lack of attention to its agenda. You have to
feed the base to keep it "fired up."
Patrio Act
Non-unique. USA Freedom bill passage would trigger the
link.
Mike Debonis 15, 6-2-2015, "Congress Turns Away From Post-9/11 Law,
Retooling U.S. Surveillance Powers," Washington Post,
http://www.washingtonpost.com/politics/senate-moves-ahead-with-retoolingof-us-surveillance-powers/2015/06/02/28f5e1ce-092d-11e5-a7adb430fc1d3f5c_story.html
Congress on Tuesday rejected some of the sweeping intelligence-gathering
powers it granted national security officials after the 9/11 terrorist attacks,
with the Senate voting to end the governments bulk collection of private
telephone records and to reform other surveillance policies. The bill, known
as the USA Freedom Act, passed on a 67-to-32 vote, against the will of Senate
Republican leaders who wished to preserve existing spy programs. The
opposition to the bill, led by Majority Leader Mitch McConnell (R-Ky.),
prompted an intraparty standoff that exposed sharp splits along philosophical
and generational lines, and between the two chambers on Capitol Hill. The
standoff led to a two-day lapse in the legal authority for those programs. The
bill passed by a wide margin in the House last month but languished as those
who sought to maintain the status quo, led by McConnell, tried to stare down
Sen. Rand Paul (R-Ky.) and the other senators who supported either ending or
reforming the most controversial provisions of the surveillance programs
records. The agency finished the process of shutting down the program
hours before the sunset deadline on June 1. According to the FISCs
reasoning, the intention of the Freedom Act was to renew the existing
program prior to its expiration until the reforms to the program set forth
in the act could be adopted a process NSA Director Michael Rogers
told the Senate should take no longer than six months. Based on that
interpretation, the court said the program should be allowed to restart
and continue until the reforms reducing its scope are in place, though
the FISC has yet to actually issue the approval. Although the statutory
framework is somewhat tangled, the choice before the court is actually
very clear and stark: as described below, it can apply well-established
principles of statutory construction and interpret the USA Freedom Act in
a manner that gives meaning to all of its provisions, or it can ignore
those principles and conclude that Congress passed an irrational statute
with multiple superfluous parts, the court said in the brief. Basically,
the court reasoned, the interpretation of the USA Freedom Act reforms
dont make sense in the context of the post-expired program, and to
interpret and apply the reforms as they were intended in the drafting of
the bill, the court must recognize and renew the program as it
functioned prior to the expiration of Patriot Act Section 215.
Prez Powers DA
Uniqueness
Presidential powers high now. Recent supreme court
decision proves.
David Orentlicher 15, (6-19-2015, "Orentlicher: Court failed to check
presidential power," Indianapolis Star,
http://www.indystar.com/story/opinion/2015/06/19/orentlicher-court-failedcheck-presidential-power/28978857/, HL)
Once again, the Supreme Court has abdicated its role as a check on the
presidents foreign policy power. Indeed, in the recent case of Zivotofsky v.
Kerry, the court not only refused to limit presidential power, it chose to
expand it. In an era of presidential excesses (secret spying on U.S. citizens,
military interventions without congressional authorization, and approval of
torture), we need a Supreme Court that corrals broad assertions of executive
power rather than giving them a green light. Zivotofsky involved statutory
provisions that called for recognition of Jerusalem as the capital of Israel in a
few ways relocation of the U.S. Embassy in Israel from Tel Aviv to
Jerusalem, identification of Jerusalem as Israels capital in U.S. government
documents, and listing Israel as the place of birth in passports for U.S.
citizens born in Jerusalem who request such a listing. Congress passed these
provisions in 2002 as part of a bigger bill. While President George W. Bush
approved the main parts of the bill and therefore signed it, he issued a
signing statement claiming that the Jerusalem provisions interfered with his
constitutional authority over foreign policy. The Zivotofsky case arose when
parents of a U.S. citizen born in Jerusalem asked that Israel be recorded as
their sons place of birth on his passport, just as Congress said that it could.
The Department of State refused, taking the position that the presidents
foreign policy power overrides the 2002 law and that the status of Jerusalem
should be settled by the Middle East peace process. The court sided with
presidential power, on the ground that the Constitution gives the president
sole authority on the recognition of foreign countries. But the Court relied
on a misreading of constitutional history. Whats the misreading? As the
courts 6-3 majority acknowledged, the constitutional drafters did not believe
they were giving presidents sole authority to decide matters involving the
recognition of foreign countries. Indeed, the founding fathers did not believe
they were giving presidents sole authority on any matters of foreign policy.
Congress and the president share the war powers, with Congress deciding
when to go to war and presidents deciding strategy and tactics as
Commander in Chief. The treaty-making power also is shared, with presidents
negotiating and the Senate ratifying treaties. And to the extent that the
Constitution speaks to recognition of foreign countries, it envisions a sharing
of power presidents appoint ambassadors with the advice and consent of
the Senate. If the constitutional drafters meant to give presidents sole
authority to recognize foreign countries, they would have said so. How then
did the Court explain its decision? It cited a constitutional provision that
assigns to the president the responsibility of receiving ambassadors from
power
unseen
in
decades,
Reuters,
capitalist industries by the state. Americans are giving him leeway as well. His job approval ratings are well over 60
the Republicans,
are in disarray, reduced in numbers and engaged in an internal struggle over how to recover from devastating
election losses in 2006 and last year. Experts speak of Obama in the same league as such
transformational presidents as Democrat Franklin Roosevelt , who led the
United States through the Great Depression and World War Two, and Republican Ronald Reagan,
percent, giving him political capital to undertake big challenges. His political opponents,
policy but everyone understood that his ministers did. In our system, the
official story is that Congress makes policy and the president implements it
such is the inertia of history. But the reality is that the president both makes
policy and implements it, subject to vague parameters set down by Congress
and to its carping from the sidelines. Presidents can defy the official story and
assert the reality if they want. That is what the George W. Bush
administration did, to its eventual sorrow. In hindsight, the broad assertions of
executive power by Bush administration lawyers in signing statements,
executive orders, and secret memos were nave. They described, with only
some exaggeration, the actual workings of the government, but their account
conflicted with the official narrative and thus played into the hands of critics,
who could invoke tyranny, dictatorship, and that old standby, the imperial
presidency.
Link
Weak presidency tempts challenge and escalation
Bolton 9 (John R. Bolton, former U.S. ambassador to the United
Nations, is a senior fellow at the American Enterprise Institute 10/18/09
The danger of Obama's dithering
http://articles.latimes.com/2009/oct/18/opinion/oe-bolton18) Weakness
in American foreign policy in one region often invites challenges
elsewhere, because our adversaries carefully follow diminished
American resolve. Similarly, presidential indecisiveness, whether
because of uncertainty or internal political struggles, signals that the
United States may not respond to international challenges in clear and
coherent ways. Taken together, weakness and indecisiveness have
proved historically to be a toxic combination for America's global
interests. That is exactly the combination we now see under President
Obama. If anything, his receiving the Nobel Peace Prize only underlines
the problem. All of Obama's campaign and inaugural talk about
"extending an open hand" and "engagement," especially the multilateral
variety, isn't exactly unfolding according to plan. Entirely predictably, we
see more clearly every day that diplomacy is not a policy but only a
technique. Absent presidential leadership, which at a minimum means
clear policy direction and persistence in the face of criticism and
adversity, engagement simply embodies weakness and indecision.
significant, then, that the FISCR has shown a willingness to embrace the
foreign intelligence exception even in the post-FISA constitutional framework.
In its 2002 decision in In re Sealed Case, n92 the FISCR took "for granted"
that the executive had the inherent constitutional authority to conduct
warrantless foreign intelligence surveillance n93 and held that foreign
intelligence electronic surveillance under FISA complied with the Fourth
Amendment without determining whether a FISA order served as a
constitution-ally valid warrant. n94 In effect, the FISCR upheld the electronic
surveillance at issue solely on reasonable-ness grounds, implicitly supporting
the proposition that the Warrant Requirement did not apply. n95 Six years
later in In re Directives, n96 the FISCR expressly [*1610] adopted the foreign
intelligence exception to the Warrant Requirement by upholding surveillance
under the PAA. Specifically, the FISCR held that "a for-eign intelligence
exception to the Fourth Amendment's Warrant Requirement exists [at least]
when surveil-lance is conducted to obtain foreign intelligence for national
security purposes and is directed against for-eign powers or agents of foreign
powers reasonably believed to be located outside the United States." n97
Indeed, the FISCR has stressed that the government's compelling interest in
protecting the nation from for-eign threats is "particularly intense" n98 and
constitutes a special need "distinguishable from 'ordinary crime control.
that Americans should now be "less worried about an out-ofcontrol presidency than an enfeebled one."
Amend 12333
Amending XO 12333 stops bulk data collection
Stepanovich 14 (Amie Stepanovich Access, Coalition to President:
Reform Surveillance
Nowhttps://www.accessnow.org/blog/2014/09/02/access-coalition-topresident-reform-surveillance-now)
Access, joined by members of Congress, former government officials,
and dozens of civil society groups and private companies, has urged the
Obama Administration to reform surveillance practices under Executive
Order 12333, which authorizes mass surveillance by NSA and other
intelligence agencies with no meaningful limits. In a letter to the
president and to the Privacy and Civil Liberties Oversight Board, we also
called for the declassification of current and future legal opinions
interpreting this sweeping surveillance authority. President Obama has
the power to unilaterally reform this Executive Order to stop the
unaccountable and unjustifiable bulk collections of millions of users
data. Current practices are unlawful under international treaties, to
which the U.S. is a party, and out of touch with long-accepted principles
of privacy and human rights. The signers include Representatives John
Conyers, Zoe Lofgren, Rush Holt, and Alan Grayson; former government
officials John Tye (former U.S. State Dept.), Ed Felton (former FTC Chief
Technologist), and Ian Schuler (former U.S. State Dept.); and dozens of
organizations including the American Civil Liberties Union, Electronic
Frontier Foundation, Amnesty International, and Silent Circle. Executive
Order 12333 allows intelligence agencies to conduct surveillance that
profoundly violates the basic rights of internet users in the U.S. and
abroad. Unlike Section 215 of the Patriot Act, this Reagan-era policy not
only allows for the bulk collection of metadata, but also the content of
our communications all via secret interpretations of a decades-old
executive order. Secret laws are a threat to American democracy. For
decades, the NSA and other intelligence agencies have used authority
purportedly granted in Executive Order 12333 to spy on millions of users
without any meaningful limits. The president can and must stop these
gross violations of our rights that continue without any oversight or
accountability
americans/2014/07/18/93d2ac22-0b93-11e4-b8e5d0de80767fc2_story.html
Unlike Section 215, the executive order authorizes collection of the
content of communications, not just metadata, even for U.S. persons.
Such persons cannot be individually targeted under 12333 without a
court order. However, if the contents of a U.S. persons communications
are incidentally collected (an NSA term of art) in the course of a lawful
overseas foreign intelligence investigation, then Section 2.3(c) of the
executive order explicitly authorizes their retention. It does not require
that the affected U.S. persons be suspected of wrongdoing and places
no limits on the volume of communications by U.S. persons that may be
collected and retained. Incidental collection may sound insignificant,
but it is a legal loophole that can be stretched very wide. Remember
that the NSA is building a data center in Utah five times the size of the
U.S. Capitol building, with its own power plant that will reportedly burn
$40 million a year in electricity. Incidental collection might need its
own power plant.A legal regime in which U.S. citizens data receives
different levels of privacy and oversight, depending on whether it is
collected inside or outside U.S. borders, may have made sense when
most communications by U.S. persons stayed inside the United States.
But today, U.S. communications increasingly travel across U.S. borders
or are stored beyond them. For example, the Google and Yahoo e-mail
systems rely on networks of mirror servers located throughout the
world. An e-mail from New York to New Jersey is likely to wind up on
servers in Brazil, Japan and Britain. The same is true for most purely
domestic communications.Executive Order 12333 contains nothing to
prevent the NSA from collecting and storing all such communications
content as well as metadata provided that such collection occurs
outside the United States in the course of a lawful foreign intelligence
investigation. No warrant or court approval is required, and such
collection never need be reported to Congress. None of the reforms that
Obama announced earlier this year will affect such collection. Without
any legal barriers to such collection, U.S. persons must increasingly rely
on the affected companies to implement security measures to keep their
communications private. The executive order does not require the NSA
to notify or obtain consent of a company before collecting its users
data. The attorney general, rather than a court, must approve
minimization procedures for handling the data of U.S. persons that is
collected under 12333, to protect their rights. I do not know the details
of those procedures. But the director of national intelligence recently
declassified a document (United States Signals Intelligence Directive 18)
showing that U.S. agencies may retain such data for five years.
Solvency
General
Congress exercises full control over domestic surveillance programs.
Erica Werner, The Associated Press Published Wednesday, June 3, 2015 5:58AM EDT
presidents issue orders and that subordinates simply carry them out is
nurtured in the public imagination by media reports of Obamas policies or
decisions or initiatives, by the Presidents own frequent references to my
directives or personnel, and by the Trumanites own reports that the President
himself has ordered them to do something. But true top-down decisions
that order fundamental policy shifts are rare.369 The reality is that when the
President issues an order to the Trumanites, the Trumanites themselves
normally formulate the order.370 The Trumanites cannot be thought of as
men who are merely doing their duty. They are the ones who determine their
duty, as well as the duties of those beneath them. They are not merely
following orders: they give the orders.371 They do that by entangling372
the President. This dynamic is an aspect of what one scholar has called the
deep structure of the presidency.373 As Theodore Sorensen put it,
Presidents rarely, if ever, make decisionsparticularly in foreign affairsin
the sense of writing their conclusions on a clean slate . . . . [T]he basic
decisions, which confine their choices, have all too often been previously
made.374
Justice Douglas, a family friend of the Kennedys, saw the Trumanites
influence first-hand: In reflecting on Jacks relation to the generals, I slowly
realized that the military were so strong in our society that probably no
President could stand against them.375 As the roles of the generals and CIA
have converged, the CIAs influence has expandedaided in part by a
willingness to shade the facts, even with sympathetic Madisonian sponsors. A
classified, 6,000-word report by the Senate Intelligence Committee reportedly
concluded that the CIA was so intent on justifying extreme interrogation
techniques that it blatantly misled President George W. Bush, the White
House, the Justice Department and the Congressional intelligence committees
about the efficacy of its methods.376 The CIA gets what it wants,
President Obama told his advisers when the CIA asked for authority to expand
its drone program and launch new paramilitary operations.377
Sometimes, however, the Trumanites proceed without presidential approval.
In 1975, a White House aide testified that the White House didnt know half
the things intelligence agencies did that might be legally questionable.378
If you have got a program going and you are perfectly happy with its results,
why take the risk that it might be turned off if the president of the United
States decides he does not want to do it, he asked.379 Other occasions arise
when Trumanites in the CIA and elsewhere originate presidential
directivesdirected to themselves.380 Presidents then ratify such
Trumanite policy initiatives after the fact.381 To avoid looking like a bystander
or mere commentator, the President embraces these Trumanite policies, as
does Congress, with the pretense that they are their own.382 To maintain
legitimacy, the President must appear to be in charge. In a narrow sense, of
course, Trumanite policies are the Presidents own; after all, he did formally
approve them.383 But the policies ordinarily are formulated by Trumanites
who prudently, in Bagehots words, prevent the party in power from going
all the lengths their orators propose[].384 The place for presidential
FISA
Prez Powers
Congressional Power
Domestic surveillance is congressional authority not
presidential
Kitrosser,8 Heidi Kitrosser, Associate Professor, University of Minnesota
Law School. I am grateful to the organizers of the symposium for which this
paper was written, particularly David Gans, Michael Herz, and Kevin Stack. I
also owe many thanks to former Vice President Walter Mondale for a
fascinating and inspiring discussion about congressional oversight of national
security activities. Finally, I am very grateful to Professor Suzanne Thorpe of
the University of Minnesota Law Library for her research assistance and to
University of Minnesota co-deans Guy Charles and Fred Morrison for their
continued support. January, 2008, 29 Cardozo L. Rev. 1049
Opponents of the warrantless surveillance program dispute the
administration's statutory and constitutional points. On the statutory front,
opponents argue that the general language of the AUMF does not override
FISA's specific requirements for electronic surveillance. n23 They further note
that FISA provides a fifteen-day exemption from its requirements following a
congressional declaration of war and that FISA was amended several times
after the AUMF's passage. Both the fifteen-day exemption and the post-AUMF
amendments would be superfluous, opponents argue, had the AUMF
implicitly overridden FISA. n24 On the constitutional points, opponents argue
that Congress and the President share powers in both military and domestic
affairs, that domestic surveillance falls well within Congress'
legislative powers, and that the President thus must conduct any
operations within FISA's parameters. n25
Uniqueness
Recent decisions about executive appointments already
kill presidential powers
SHEAR, MICHAEL. "Decision by Justices Opens a New Debate on the Limits
of Presidential Power." The New York Times. (June 27, 2014 Friday ): 1005
words. LexisNexis Academic. Web. Date Accessed: 20 15/07/17.
Thursday's decision by the Supreme Court to curb President Obama's ability
to make recess appointments opened a new debate in the nation's capital
about the proper limits of presidential power in an era of intense partisan
gridlock. Republicans hailed the ruling as a repudiation of what they called
Mr. Obama's abuse of his constitutional power when he tried in 2012 to fill
vacancies at two federal agencies without Senate confirmation. But Mr.
Obama and his allies noted that the decision stopped short of severely
undermining the broader appointment power of the presidency, as an appeals
court had ruled earlier. White House officials had worried that the court's
more conservative members might emerge victorious with a far more
restrictive view of presidential power. They did not. ''We're, of course, deeply
disappointed in today's decision,'' Josh Earnest, the White House press
secretary, said. ''We are, however, pleased that the court recognized the
president's executive authority as exercised by presidents going all the way
back to George Washington.'' Mr. Obama had tried to maneuver around
longstanding Republican efforts to block his appointments to the National
Labor Relations Board by seating members during pro forma sessions of the
Senate when almost all of the senators were at home in their districts and no
legislative business was conducted. The court ruled that the president's
action violated the Constitution and said that the Senate and House have the
ultimate power to block such recess appointments by scheduling the minisessions when they want to. But the justices for the first time recognized the
basic right of the president to make appointments without the consent of the
Senate when the Congress is in an extended recess during a two-year
session, as it often is during the summer, around Christmas and in the spring.
Republicans said the decision amounted to a rebuke of the president at a
time when they are arguing that Mr. Obama is repeatedly exceeding his
authority to get around a Congress that does not do what he wants it to. ''He
picks and chooses what parts of the Constitution and duly passed legislation
he wants to enforce or follow,'' said Representative Kevin McCarthy of
California, the incoming majority leader in the House. ''The president's
attempt at illegitimate administrative appointments is a prime example of
overreach. This bolsters the case for the House to take further action to
ensure our laws are properly executed and our freedoms are protected.''
Representative Darrell Issa, a California Republican and chairman of the
House Oversight and Government Reform Committee, said the court's
decision made it clear that ''President Obama acted without any legitimate
authority.'' The decision comes a day after Speaker John A. Boehner said he
would seek legislation allowing the House to sue Mr. Obama over the
Link
Establishing non-congressional legislative bodies kills
presidential review and skews checks and balances
Ronald A. Cass 15, Ronald A. Cass is Dean Emeritus of Boston University
School of Law, President of Cass & Associates PC, and author of The Rule of
Law in America., 7-8-2015, "Out Of Control: Separation Of Powers And
Encroaching Delegations," The Washington Times,
http://www.washingtontimes.com/news/2015/jul/8/celebrate-liberty-monthout-of-control-separation-/
Separation of powers as a tool for limiting discretionary official power is the
foundation stone of our Constitution and the rule of law. No institutional
device does more to protect liberty. James Madison called separation of
powers the first principle of a free government and helped craft a
Constitution that divides government power between national and state
governments and between different branches of government. In Federalist
51, Madison explained the related concept of checks and balances, saying
that the great security against a gradual concentration of government
power (once separated) consists in giving those who administer each
department, the necessary constitutional means and personal motives, to
resist encroachments of the others. Not all encroachments, however, have
been resisted. A decision in the recently concluded U.S. Supreme Court term
highlights one type of encroachment that has grown out of control.
Department of Transportation v. Association of American Railroads asked
whether granting Amtrak power to help frame regulations that apply to
private railroad enterprises violates the Constitution. The primary complaint
was that this grant of power breaches the non-delegation doctrine. When
the Supreme Court passed that issue back to the lower court, Justices Alito
and Thomas thoughtfully described considerations that should guide further
review. The essence of the non-delegation doctrine is that Congress cannot
give its legislative power to others. The vesting clauses of the Constitution
assign different powers to each of the three branches, stating, for example,
that All legislative powers herein granted shall be vested in a Congress of
the United States before going on to state how the Congress will be
composed, what powers it will have, and what processes it must observe in
passing laws. The Constitution similarly vests executive power in the
Presidents hands and judicial power in the courts created under Article III.
The divisions of power among the branches and the processes established to
govern each are essential protections against tyranny; they are the
mechanisms that check expansion of discretionary official power. The
Supreme Court has been fairly vigilant in preventing exercise of judicial
power by officials not appointed and tenured in accord with Article IIIs
commands or assignments of executive power that do not observe
constitutional requirements respecting appointment and control of executive
officers. Its record with respect to congressional efforts to outplace legislative
authority, however, has been far weaker. Basic policy choices on rules that
against the Islamic State. It began with procedural sleight of hand by Senator
Rand Paul of Kentucky, who is expected to seek the Republican nomination
for president and has positioned himself as a less hawkish alternative to the
other potential candidates in his party. Mr. Paul used a routine meeting over
an unrelated issue -- clean water -- to force his colleagues to schedule a vote
on authorizing force against the Islamic State. The committee agreed to
move forward, though only after dissent from Republicans like Senator John
McCain of Arizona who take a more traditional interventionist approach. Mr.
McCain called Mr. Paul's proposal, which would prohibit the use of ground
forces in most cases and set strict time limits on the conflict, ''crazy.'' A vote,
on either Mr. Paul's plan or a similar one, could happen as early as Tuesday. If
a plan is approved, it would get a floor vote before the end of the year if
Majority Leader Harry Reid agreed to put it at the top of a crowded Senate
calendar. At issue is the administration's position that it is justified in
engaging in military activity today because of two acts of Congress that are
now more than a decade old: a 2001 authorization passed after the Sept. 11
attacks, and a 2002 authorization sought by President George W. Bush for the
Iraq war. ''Thirteen years later, we are still working off a 2001 authorization
that has led us to many places well beyond the Afghanistan-Pakistan border,''
said Senator Robert Menendez, Democrat of New Jersey and the Foreign
Relations Committee chairman. Across the Rotunda, House Republicans
turned their attention to the pressing matter of preventing a government
shutdown when federal spending authority runs out on Dec. 11. The House
on Thursday voted 219 to 197 in favor of a resolution by
Representative Ted Yoho, Republican of Florida, to halt
implementation of the president's order stopping the deportations
of millions of unauthorized immigrants. Three Democrats supported the
measure, and three Republicans voted present. But the vote was largely
symbolic, enabling angry House Republicans to express displeasure with the
president for altering the nation's immigration policy without congressional
approval. Mr. Reid has already made clear that he will not take up the House's
measure. With immigration politics caught up in the fight over government
spending, Thursday's vote was part of a two-step strategy by House
Republican leaders to corral their more conservative members and pass a
broad spending bill so the government does not close on Dec. 11. Next week,
House Speaker John A. Boehner and his leadership team plan to bring to the
floor legislation that would fund almost all of the government through the
next fiscal year, while funding the Department of Homeland Security -- the
agency primarily charged with executing the president's immigration policy -only into early next year. At that point, Republicans will control both
chambers of Congress and believe they will have more political
might to chip away at the president's order. Many Republicans see
the new Congress as an opportunity to curtail presidential power. ''I
think he's abusing the powers of the presidency and he is setting a whole
new bar in terms of executive overreach that this country has never seen
before,'' said Representative Steve Daines, Republican of Montana, who was
elected as a senator last month. But Republicans face their own divisions.
AT POLITICS
Obama has bipartisan support to fight terrorism,
executive order is not necessary
JEREMY W. PETERS, Obama to Seek War Power Bill from Congress, to
Fight ISIS, Peters is a reporter for the NY Times in Washington, FEB.
10, 2015, New York Times
WASHINGTON The Obama administration has informed
lawmakers that the president will seek a formal authorization
to fight the Islamic State that would prohibit the use of enduring
offensive ground forces and limit engagement to three years. The
approach offers what the White House hopes is a middle way
on Capitol Hill for those on the right and left who remain
deeply skeptical of its plans to thwart extremist groups. The
request, which could come in writing as early as Wednesday morning,
would open what is expected to be a months long debate over
presidential war powers and the wisdom of committing to another
unpredictable mission in the Middle East while the nation is still
struggling with the consequences of two prolonged wars. Congress has
not voted to give a president formal authority for a military operation
since 2002 when it backed George W. Bush in his campaign to strike
Iraq after his administration promoted evidence, since discredited, that
Saddam Husseins government possessed unconventional weapons.
The new request to conduct military operations would repeal that
authorization. But it would leave in place the broad authority to
counter terrorism that Congress granted Mr. Bush in 2001 after
the Sept. 11 attacks, which many Democrats now believe is being
interpreted too broadly to justify military actions that were never
intended. After more than a decade of war and 7,000 American military
lives lost in Iraq and Afghanistan, President Obama will face doubts not
only from Democrats who want stricter limitations set on where he can
send troops and how long his authority will last, but also from
Republicans, who are dubious of the administrations strategy for
defeating the Islamic State extremist group. The White House has
tried to address concerns by drafting a resolution that tries to
be both circumscribed and flexible. It would explicitly disallow
extended use of combat forces, lawmakers and aides who are familiar
with the plan said Tuesday. That language is intended as a compromise
to ease concerns of members in both noninterventionist and
interventionist camps: those who believe the use of ground forces
should be explicitly forbidden, and those who do not want to hamstring
the commander in chief. The resolution also requests authority to wage
battle beyond the fight against the Islamic State to include associated
forces. It would contain no geographic limitations. Both are sticking
points for many Democrats, who expressed concern that the president
was setting the country up for another open-ended conflict. Those
tensions surfaced on Tuesday as Mr. Obamas chief of staff, Denis
McDonough, visited the Capitol to present Democrats with the outlines
of the language the White House plans to send to Congress. By most
accounts, he faced a skeptical audience. Senator Richard Blumenthal,
Democrat of Connecticut and a member of the Armed Services
Committee, said as he left the meeting that he had grave
reservations and that he had yet to be convinced. Senator Joe
Manchin III, Democrat of West Virginia, echoed the concerns of many
lawmakers who are worried that giving the president approval would
only reward a decade of mismanagement in the Middle East. If money
or military might would change that part of the world, wed be done a
long time ago, he said. In West Virginia, we understand the definition
of insanity. The Obama administration has insisted that it does not need
Congress authority to continue its military campaign. But an affirmative vote
from Congress would bolster the legitimacy that the president already claims
as commander in chief in the battle against the Islamic State, which is also
known as ISIS or ISIL, and confer a stronger legal underpinning for his actions.
Many Republicans, despite opposing Mr. Obama on almost every other issue,
seem willing to give him that authority. I have disagreements with the
presidents conduct of foreign policy and what hes done, said Senator
Jeff Flake, Republican of Arizona and a member of the Foreign Relations
Committee. But in this instance, we need an Authorization for the Use
of Military Force. Our enemies and our allies need to know that we
speak with one voice.
Backlash
Backlash means Executive Orders crush pres powers
PCAP 08 (Presidential Climate Action Project, Nonpartisan Project at the
University of Colorado Denver, Climate Action Brief: The Use of Presidential
Power, 2008 is the last date cited,
http://www.climateactionproject.com/docs/briefs/Climate_Brief_Presidential_P
ower.pdf)
Among the issues the Bush Administration will leave for the next president is
a continuing controversy about the use of presidential power. A number of President Bushs
actions among them his order directing warrantless domestic surveillance and his use of
signing statements as a virtual line-item veto of Congressional intent have led to
protests that the President has violated the boundaries of executive authority. The
American Bar Association criticized President Bushs use of signing statements as contrary to the rule of law and
our constitutional system of separation of powers. i This legacy could lead the Congress, the
courts and the voters to push the presidential power pendulum to the
opposite extreme, handcuffing the executive branch even in areas where its
powers are clear. Yet the 44th President will need all the tools he or she commands to
deal with the serious problems the next administration will have to tackle, including global climate change.
Perm do Both
Perm have the executive and congress work together.
Unilateral executive action on surveillance kills separation
of powers and leads to tyrannical rule.
Glenn Harlan 14, 2-10-2014, "NSA spying undermines separation of
powers: Column," USA TODAY,
http://www.usatoday.com/story/opinion/2014/02/10/nsa-spying-surveillancecongress-column/5340281/
Most of the worry about the National Security Agency's bulk interception of
telephone calls, e-mail and the like has centered around threats to privacy.
And, in fact, the evidence suggests that if you've got a particularly steamy
phone- or Skype-sex session going on, it just might wind up being shared by
voyeuristic NSA analysts. But most Americans figure, probably rightly, that
the NSA isn't likely to be interested in their stuff. (Anyone who hacks my email is automatically punished, by having to read it.) There is, however, a
class of people who can't take that disinterest for granted: members of
Congress and the judiciary. What they have to say is likely to be pretty
interesting to anyone with a political ax to grind. And the ability of the
executive branch to snoop on the phone calls of people in the other branches
isn't just a threat to privacy, but a threat to the separation of powers and the
Constitution. As the Framers conceived it, our system of government is
divided into three branches -- the executive, legislative and judicial -- each of
which is designed to serve as a check on the others. If the president gets out
of control, Congress can defund his efforts, or impeach him, and the judiciary
can declare his acts unconstitutional. If Congress passes unconstitutional
laws, the president can veto them, or refuse to enforce them, and the
judiciary, again, can declare them invalid. If the judiciary gets carried away,
the president can appoint new judges, and Congress can change the laws, or
even impeach. But if the federal government has broad domestic-spying
powers, and if those are controlled by the executive branch without
significant oversight, then the president has the power to snoop on political
enemies, getting an advantage in countering their plans, and gathering
material that can be used to blackmail or destroy them. With such power in
the executive, the traditional role of the other branches as checks would be
seriously undermined, and our system of government would veer toward
what James Madison in The Federalist No. 47 called "the very definition
of tyranny," that is, "the accumulation of all powers, legislative,
executive, and judiciary, in the same hands." That such widespread
spying power exists, of course, doesn't prove that it has actually been
abused. But the temptation to make use of such a power for self-serving
political ends is likely to be very great. And, given the secrecy surrounding
such programs, outsiders might never know. In fact, given the
compartmentalization that goes on in the intelligence world, almost everyone
at the NSA might be acting properly, completely unaware that one small
section is devoted to gather political intelligence. We can hope, of course,
that such abuses would leak out, but they might not. Rather than counting on
leakers to protect us, we need strong structural controls that don't depend on
people being heroically honest or unusually immune to political temptation,
two characteristics not in oversupply among our political class. That means
that the government shouldn't be able to spy on Americans without a warrant
a warrant that comes from a different branch of government, and requires
probable cause. The government should also have to keep a clear record of
who was spied on, and why, and of exactly who had access to the information
once it was gathered. We need the kind of extensive audit trails for access to
information that, as the Edward Snowden experience clearly illustrates, don't
currently exist. In addition, we need civil damages with, perhaps, a waiver
of governmental immunities for abuse of power here. Perhaps we should
have bounties for whistleblowers, too, to help encourage wrongdoing to be
aired. Is this strong medicine? Yes. But widespread spying on Americans is a
threat to constitutional government. That is a serious disease, one that
demands the strongest of medicines.
Patriot Act
Congress curtail surveillance through changing Patriot Act
Harper 15 (Casey Harper 6/2/15Heres Everything You Need
To Know About The Patriot Act Changes
http://dailycaller.com/2015/06/02/heres-everythingyou-need-to-know-about-the-patriot-act-changes/)
Majority Leader Mitch McConnell suffered a serious embarrassment over
the weekend when Congress let certain key provisions of the Patriot Act
expire at 12:01 a.m. Monday morning. At the end of a chaotic weekend
and with a new bill likely to pass in the next few days addressing the
vast and complex federal surveillance infrastructure, its hard to know
exactly whats happening and what it means. Heres everything you
need to know about the changes so far. The Patriot Act was passed
shortly after the Sept. 11, 2001 terror attacks to give the federal
government the authority to track suspects and potential terrorists. The
program quickly expanded and began taking in large amounts of
information from American citizens, including huge amounts of
telephone metadata from communications companies. Now, three
major parts of the law that required reauthorization before June 1 have
expired: Section 215 The most consequential thing to happen was
the expiration of the infamous Section 215 of the Patriot Act, the
provision that allowed for bulk collection of private phone data from
millions of Americans not suspected of any crime and the most decried
section by privacy advocates. The provision allows the government to
bulk collect metadata, which is what time a calls is made, how long
the conversation lasted, and what phone numbers sent and received
that call. Section 215s expiration only means that rather than
collecting the data first-hand, the Agency will eventually have to go to
the communications companies themselves in a more targeted
manner. Lone Wolf This provision allowed the federal government to
track a lone wolf, someone who could be a terrorist threat but is not
connected to any group like ISIS. The Feds say theyve never had to use
this provision and that it is not for use on U.S. citizens but still stress its
importance. Roving Wiretap This provision allows the NSA to track
people on multiple electronic devices without getting individual approval
for each one. The Feds claim this is rarely used and needs an approval
from a federal court.
CONSTITUTIONAL
AMENDMENT
Process of amendment card
Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint
resolution and publishes it in slip law format. The OFR also assembles an information package for the
States which includes formal "red-line" copies of the joint resolution, copies of the joint resolution in slip
The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the
documents are found to be in good order, the Director acknowledges receipt and maintains custody of
The furor in the past two weeks over government eavesdropping on the
media and citizens has raised a lot of questions related to the First Amendment and the Fourth
Amendment. Government actions to monitor the phone records of the
Associated Press and track the activities of a Fox News reporter started a
debate about the First Amendment. And last weeks revelations about widespread
government collection of phone call datafollowed by broader claims about
data collection involving the Internetstarted a whole new argument about the Fourth
Amendment. Those are just a few of the issues about privacy that have been debated over the past year. Theres also the pesky issue
of drones and other forms of technology that can do much good, but also
cause massive privacy invasions in the wrong circumstances. And theres the
issue of when and how police can enter your home . As for the government
surveillance programs, the Obama administration and Congress members say
the activities of the National Security Agency are approved and monitored by
all three government branches, in accordance with the Constitution. In past court
decisions, the Fourth Amendment has been applied to support privacy rightsto learn more about the evolution of privacy rights, National Constitution Center president
Jeffrey Rosen suggests the five must-read books about privacy issues that are now all too contemporary.
Constitutionality Amendment CP
Immense bipartisan support for a new amendment in the
case of privacy/surveillance
Ashland, 2014(Lana is an analyst and editor for The Daily Independent in Ashland, Ky. Massie's secure data amendment
excluded in omnibus. http://www.lexisnexis.com/hottopics/lnacademic/. Date Accessed- 7/16/15. Anshul Nanda.)
Dec. 17--ASHLAND -- U.S. Rep. Thomas Massie, R-Vanceburg, was disappointed Thursday when he realized an amendment he has
advocated for the past half year regarding "backdoor" surveillance of private data were excluded from last week's omnibus bill. The
continuing resolution/omnibus, also known as CRomnibus legislation, is a bundle of bills more than 1,600 pages long that covers $1.1
trillion in finance legislation. It was unveiled Tuesday and passed by Congress Thursday. Massie, along with Reps. Jim
Sensenbrenner, R-Wis., and Zoe Lofgren, D-Calif., introduced an amendment, which passed the House of Representatives
with a "veto-proof
majority will no longer tolerate the status quo." An email from Massie's
Washington office said he will continue advocating for the bill in the next Congress. The
Massie-Sensenbrenner-Lofgren amendment was inspired by the USA Freedom Act, which was also passed earlier this year. Massie,
along with Sensenbrenner and Lofgren, proposed the amendment after a bill
that can be done. Against this backdrop-this increasingly charged atmosphere where each new reported invasion of personal privacy
triggers a visceral, public reaction-I would like to reflect on the topic of privacy and its business challenges. In part, we have arrived at this point in the
privacy debate because of the explosion of information technology. Technological
reach of existing privacy laws. But by the next day, after committee members were "educated" by the industry, many had set aside their gut reactions and
spoke about operational difficulties and the unknown consequences of increased restrictions on the transfer of customer information. The amendment
failed, and in its place, the committee adopted an amendment requiring disclosure of privacy policies. When the Senate considered its financial
modernization bill, in early May, privacy amendments were generally fended off. A number of pro-privacy senators announced that the issue should be
considered separate and apart from the bill. That view largely prevailed. But
customers' perspective, as something they feel belongs to them. In developing and implementing privacy policies, think about how your customers would
react if you gave them a full description of how much of their information you collect, what you do with it, whether you transfer it, to whom you transfer
it, and what then happens to it. Would you be embarrassed? Would your customers feel they had been treated fairly? Structure your privacy policies-and
implement them- accordingly. Copyright c 1999 American Banker, Inc. All Rights Reserved. http://www.americanbanker.com
would also
permit a blanket order for surveillance of multiple foreign targets to be
granted by the Foreign Intelligence Surveillance Court. However, the Justice
Department Inspector General must regularly report on the use of blanket
orders and the number of U.S. persons' communications collected in the
orders' use. The Justice Department Inspector General would also be required to audit the Terrorist Surveillance Program and other
warrantless surveillance programs. The bill faced resistance from House Republicans when it was pulled from the floor in October but passed with
bipartisan support on Nov. 15 with a 227-189 vote. The White House immediately issued a statement saying, "This evening House Democrats passed
legislation that would dangerously weaken our ability to protect the Nation from foreign threats." Chairman Reyes, however, characterized the
RESTORE Act as helping to "restore the balance between security and liberty." In a statement issued after the vote, Reyes explained, "The RESTORE
Act puts the FISA Court back in the business of protecting Americans' constitutional rights after the President and Vice President put that court out of
that business six years ago." The Senate Judiciary Committee voted S. 2248 out of committee on a narrow 10-9 party-line vote. When the Senate
Intelligence Committee passed the same bill in October, it included a provision that would provide immunity for any telecommunications company that
assisted in illegal counterterrorism operations after Sept. 11, 2001. The Senate Judiciary Committee rejected an amendment by Sen. Russ Feingold (DWI) to strip out the immunity provision by a vote of 10-7, with two Democrats, Sens. Dianne Feinstein (D-CA) and Sheldon Whitehouse (D-RI), joining
the Republicans. In a quick turnabout, Sen. Patrick Leahy (D-VT), chairman of the Judiciary Committee, offered a motion to move the bill to the Senate
floor without the immunity provisions. It passed on a 10-9 vote. Senate Majority Leader Harry Reid (D-NV) will now have to decide which version of
the FISA bill to bring to Senate floor, the Judiciary Committee version without immunity for the telecommunications companies, or the Intelligence
Committee version with immunity. Since there will inevitably be an amendment to either strip immunity or add it, Reid also needs to decide whether this
type of amendment will require 60 votes to kill a potential filibuster or a simple majority. Recently confirmed Attorney General Robert Mukasey and the
Director of National Intelligence Mike McConnell issued a statement opposing the bill and said that they would recommend that President Bush veto it.
They stated that the Senate Judiciary Committee bill "would not provide the intelligence community with the tools it needs effectively to collect foreign
intelligence vital for the security of the Nation." The battle over telecom immunity is likely to occur on the Senate floor. Sen. Arlen Specter (R-PA) is
already drafting a compromise which would substitute the government for the telecommunications companies as defendants in the forty-plus lawsuits
currently moving through the courts. This would allow the cases to be heard but would hold the government liable for damages if any of the plaintiffs
prevail. The Senate is expected to vote on S. 2248 before the close of session.
Though billed by his advisers as a series of sweeping changes to surveillance policy, President Barack Obamas Friday speech on surveillance largely
leaves the big decisions in Congress hands with little guidance as to how they should proceed. I think it was an
important first step for him to recognize that there is a danger in the government collecting this information in the first place, says Michelle Richardson
of the American Civil Liberties Union. He didnt go as far as his own review group recommended. From now on, the National Security Agency will be
able to query only phone records it collects with permission from the foreign intelligence surveillance court, and the scope of its searches will be smaller.
Thats not an end to bulk collectionat least not yetits shrinking the size of the bulk. ANDREA MITCHELL REPORTS, 1/17/14, 2:06 PM ET Are the
NSA changes enough? Ultimately hes leaving the door open to continued bulk collection of information, both for U.S. persons and non-U.S. persons,
said Cynthia Wong of Human Rights Watch. The U.S. government hasnt made the case for why bulk collection is necessary. Obama has said the
government should no longer hold telephone records, but did not say whether communications companies should hold onto those records or whether they
should be held by a third party. The
Congress to walk right through if they wanted to be more assertive , Richardson said.
It still leaves us with a lot of work to do.
U.S. residents have major problems with government surveillance , and six in 10 want to
see the records collection provisions of the Patriot Act modified before Congress extends it, according to a survey commissioned by a civil rights group.
amtrak derailment Business continuity and disaster recovery planning: The basics Good business continuity plans will keep your company up and
running through interruptions of any kind: READ NOW Just 34 percent of survey respondents said they'd like to see the Patriot Act preserved as a way
Sixty percent
either strongly or somewhat agreed with a statement saying Congress should
modify the Patriot Act to "limit government surveillance and protect
Americans' privacy." The section of the Patriot Act that the National Security Agency has used to collect U.S. telephone records in
to keep the U.S. safe from terrorists, according to the survey commissioned by the American Civil Liberties Union.
bulk expires on June 1. Last week, the U.S. House of Representatives voted to limit the scope of the NSA's phone and business records collection inside
the U.S., but Republican leaders in the Senate are pushing to extend the surveillance law without any changes. Some civil liberties groups have criticized
the USA Freedom Act as too weak, with the ACLU calling it "modest" reform. MORE ON CSO: 6 products that will protect your privacy
Support for amending the Patriot Act cut across party lines and age groups.
Fifty-eight percent of Democrats, 59 percent of Republicans, and 71 percent
of independent voters expressed support for changes to the law. Changes in the Patriot
Act have strong support across the political spectrum, and politicians should take notice, said Neema Singh Guliani, the ACLU's legislative counsel.
There's a "large divide" in Congress about whether to modify, kill, or renew the Patriot Act without changes, Guliani said. The polling numbers show
"how disconnected members of Congress are from the feelings of a lot of the public," she said. Another 82 percent of the 1,001 likely voters in the
survey said they were extremely, very or somewhat concerned that the U.S. government is collecting "personal information" like phone records, emails
and bank statements. Section 215 of the Patriot Act allows the NSA to collect any U.S. business records relevant to an antiterrorism investigation. The
survey went beyond the current Patriot Act debate and asked questions about other surveillance programs, including the NSA's surveillance of overseas
email and other electronic communications. Tens of thousands of U.S. residents' communications are swept up in that program every year, according to
some lawmakers, and the FBI can search the content of those U.S. communications. Seventy-nine
percent of
respondents said they found an argument for more privacy protections very
or somewhat convincing because the government reportedly has access to
personal conversations between husbands and wives, doctors and patients
and pastors and congregants. "The government has no business interfering in these relationships," reads the statement that
most people found convincing. "There was real concern about what the government was accessing in your personal life," said Greg Strimple, pollster
with G Public Strategies, one of the firms that conducted the survey. Another 83 percent found it extremely, very or somewhat concerning that the
government has access to any of their personal communications without a judge's permission. The same number found it concerning that the government
uses information collected without a warrant for things other than stopping terrorist attacks. The U.S. Office of the Director of National Intelligence
didn't immediately respond to a request for a comment on the survey. The survey, conducted between April 6 and 12 by the Democratic Global Strategy
Group and the Republican-aligned G, has a margin of error of 3.1 percent.
As part of the congressional to-and-fro over the pending Fast Track bill , senators with
concerns about the process and substance of trade negotiations have been putting forward some proposed
amendments. None of these amendments would alter the substance of what Fast Track isa bill to
authorize the President to enter into binding trade agreements such as the Trans-Pacific Partnership (TPP)
As such, even if
they were to be adopted, the amendments do not address our most
fundamental concerns with the bill. Nevertheless, they do hone in on a couple of the most
without proper congressional oversight over these secretive, industry-led deals.
egregious problems with Fast Track and with the trade deals that it enables, including the TPP and Trans-
gives foreign corporations a free pass to overturn or receive compensation for the effects of
democratically-enacted laws that negatively affect their business. Senators Elizabeth Warren and Heidi
which means that both of those agreements would have to come before Congress before the United States
signs themwhich in turn would probably defeat the agreements. A second amendment, from Sens.
Blumenthal, Brown, Baldwin, and Udall, addresses the lack of transparency of the agreement, and would
require all formal proposals advanced by the United States in negotiations for a trade agreement to be
published on the Web within five days of those proposals being shared with other parties to the
negotiations. This would bring the United States up to the same level as the European Commission, which
Sooner or
later, these sorts of reforms are inevitable, as pressure for the U.S. Trade
Representative to adopt them is echoing from all sides . Apart from its own senators,
has already begun publishing its own TTIP position papers and text proposals to the public.
multiple calls for the U.S. to improve the transparency of trade negotiations and to reject ISDS have issued
from law professors [PDF], economists, pro-trade think tanks, businesses and users. EFF has also proposed
that standards of transparency and participation in trade negotiations be incorporated into the next set of
commitments that the United States adopts under the Open Government Partnership. From Congress on
there has never been such a broad consensus that secretive trade
negotiations and ISDS processes must be condemned as illegitimate. Thus, we
down,
do not think it is a question of whether these will ultimately be rejected, but when. However, time is not on
our side. With the TPP negotiations widely tipped to conclude this year (if they conclude at all), the time to
take a stand against these undemocratic processes is now. And our best opportunity to do so is by not
merely amending Fast Track, but rejecting it, and the TPP along with it. Tell your representative to do that
now.
(Sean Vitka is the federal policy manager at the Sunlight Foundation. He holds a J.D. from Boston College Law School. This
Meaningful Surveillance Reform Had Bipartisan Support. It Failed Anyway.
http://www.slate.com/blogs/future_tense/2014/12/10/massie_lofgren_surveillance_reform_amendment_fails_despite_bipartisan_supp
ort.html. Date Accessed- 07/17/15. Anshul Nanda)
intelligence
community can retain, examine, and make use of the information in a broad
variety of situations. As the Guardian reported in 2013, the Foreign Intelligence Surveillance Act Court allows the
government to [r]etain and make use of inadvertently acquired domestic communications if they contain usable intelligence,
information on criminal activity, threat of harm to people or property, are encrypted, or are believed to contain any information
relevant to cybersecurity. The amendment