Clinton's Carnival of Corruption Continues

I am considering creading a blog category just for Clinton since he's been in the news so much lately trying to salvage anything he had of a legacy.

Anyway, he is being accused of more sleeze by a former associate. To be honest, I think that Clinton gets accused of a lot of things he probably had nothing to do with, but that is what happens when everyone you know is shady.

Bill Clinton's longtime attorney David Kendall is accused of filing a fabricated statement in a court brief to quash a multi-million-dollar lawsuit against the former president.

In legal pleadings filed this week with Los Angeles Superior Court, business mogul Peter Franklin Paul claims Kendall cobbled together two unrelated quotes from a March 2005 federal court hearing in an attempt to pin on Paul the very charge Paul is making against Clinton.

As WND has reported, Paul claims Clinton destroyed his entertainment company, Stan Lee Media, to get out of a $17 million deal in which the former president promised to promote the firm in exchange for Paul's massive contributions to Sen. Hillary Clinton's 2000 campaign. Paul alleges specifically that Bill Clinton's agent diverted a key investment away from Stan Lee Media – a partnership with the creator of Marvel Comics' Spiderman – causing it to fold amid the dot-com meltdown in December 2000.

A hearing on Paul's second amended complaint in the lawsuit is scheduled Monday morning in Los Angeles.

Paul alleges that after he donated $1.9 million of cash and in-kind contributions for Hillary Clinton's Senate campaign, Bill Clinton directed his associate, Jim Levin, to convince Paul's Japanese partner – in violation of a confidentiality agreement – to incorporate a new company instead of investing another $5 million with Paul. The loss of that badly needed capital ultimately caused Stan Lee Media to fold, Paul maintains.

Oh, this is about campaign contributions...his track record here is pretty bad.

Posted by Aaron at 12:03 PM | Comments (2) | TrackBack

Finally, a scholarly article on interrogations and law

My jaw just dropped. I read this very careful and even handed examination by a liberal law professor! Being fair, he will no doubt be called Dershowitz in training...but this is a great piece.

Domestic law is, by its very nature, coercive. Individuals can, by the power of the state, be forced to obey the law at risk of loss of liberty, property, or both. The sacrifice of personal autonomy that allows this is justified by the fidelity of those who make and enforce the rules to principles of limited power, legitimacy in law-creation, predictable and impartial enforcement, and respect for liberty. That is the essence of the rule of law.

This is consent of the governed. Our constitution provides our consent to the government to enforce the law - which necessarily curbs many of our freedoms.

International law isn't intended to have the same consequences and enforcement as national law and cannot be read the same way. For the same reason, accords among nations expected to abide by them cannot be read the same way when applied to relations with regimes - or worse, those operating outside any national office - that can be expected to treat international law with the same disdain they show for human rights and human life.

Of course it's not. International treaties cannot violate our constitutional rights. If the UN wants to ban guns around the world, that doesn't mean that we cannot be members of the UN, it just means that our government can enforce that mandate.

The current debate over treatment of al-Qaeda partisans captured abroad reveals two different visions of the law. The first group (led by President Bush) sees the law as subordinate to a conflict between good and evil. It can set limits to what we'll do to combat evil, but those limits must reflect our own interests. The second group (opposing the President), seeing law in more universal terms, wants to treat the terrorists essentially like citizens charged with crimes - giving them similar protections against government over-reaching, similar presumptions of innocence and fair play.

President Bush's position is easy to state and to understand: We are facing an enemy that has no national government, obeys no rules, and is dedicated to our destruction. They have attacked us repeatedly over more than a decade. We cannot fight al-Qaeda by destroying its homeland. We cannot retaliate against its atrocities by cutting off trade or attacking their cities.

The obvious corollary of this position is that our fight must focus on prevention and disruption. We should do everything we can short of torture to obtain information about how our enemies work and what they are planning. We should reveal as little as possible to them of what we know. We should not tie the hands of those on our front lines with vague instructions backed by potentially severe penalties.

The opposing position is that America should play by the rules of international law, as set forth in the Geneva Conventions. We should behave as if the law is clear and binding, and we should set standards that we want applied to our soldiers by our enemies. This approach has attracted an odd coalition of those concerned about treatment of captured American soldiers, civil libertarians worried about weakening rights for Americans accused of crime, and hug-a-terrorist liberals who think that playing nice brings out the best in everyone.

The difference he describes is striking and important. Every item the left proposes is a remedy for AFTER the attack or attempted attack. What good is radiological detectors in OUR ports? The bomb is sitting in Baltimore Harbor already and can be detonated there. Every item the right proposes is a measure to PREVENT another attack (successful or unsuccessful).

The question becomes this: who do trust with your rights? Do you trust the government, who governs at our consent, with certain aspects of privacy and intrusion, to protect your fundamental rights? Or do you trust the terrorists? How intrusive is beheading?

The whole article is good. Check it out.

Posted by Aaron at 10:51 AM | Comments (13) | TrackBack

I'm Surprised

The state of California requires people who receive welfare benefits to submit to warrantless, unannounced searches of their homes to determine if they are indeed eligible to stay in the program. A Federal Appellate court just ruled that even though the consent is coerced by being conditional for receiving benefits, the search is a lawful search.

That's not what surprised me. What surprised me is that this ruling came out of the Ninth Circuit. They don't really have a reputation for calling these cases for the government. You can read it here.

Posted by Charles at 06:58 PM | Comments (3) | TrackBack

The Secret Of Knowing What Is Reasonable To Expect

Compare the state secrets doctrine to the reasonable expectation of privacy doctrine. I think there is an interesting connection between the two, and that this connection plays out in the current debate over the NSA surveillance program, which is part of the broader debate over how much power the executive branch should have in fighting terrorism.

First, the state secrets doctrine. The government cannot raise a defense against litigation based on state secrets unless the matter is in fact still secret. Once the secret is out, even if its revelation is one that came about through improper means, the defense is no longer available. This has caused the government problems when using surveillance to fight terrorism, as many people believe their civil liberties have been infringed, and have sued in court. In fact, the very big news on that matter was the recent Michigan ruling, which I have detailed on this blog (1) (2) (3) (4) (5). (And which has inspired other rulings, see this ruling where a federal judge in Oregon has rejected the government's attempt to block a lawsuit against the NSA program - although summary judgement was not granted for plaintiffs.)

In the meantime, the state of New Jersey has argued that the NSA program that was the subject of the Michigan case violates the state’s consumer protection laws. An excerpt from the end of the article: "The courts have been split on [the state secrets doctrine] argument: A judge in Chicago agreed with the government that state secrets would be exposed if a case there went forward there, but another judge in San Francisco said the surveillance is already so well known that there is was no danger of spilling secrets. A judge in Detroit last month ordered an immediate end to the program, saying it violates free speech and privacy rights as well as the separation of powers, but the plaintiffs agreed to keep the ruling on hold until the judge decides whether to issue a stay." (Folks, this sort of decision splitting is what happens when Congress is too vague in their wording, but I'm getting ahead of myself.)

Yes, the folks in the Garden State want a government program designed for national security shut down because they say it violates the rights of consumers (who would have no rights whatsoever if they were dead in a terrorist attack). You can decide for yourself if they have a case. As far as I’m concerned, this is clearly a preemption issue (1) (2) (3), but that’s not the subject of this post.

The point is, as you can see from the link, that the government cannot disclose details of the program without threatening national security, and are thus claiming the state secrets doctrine. And the response of anyone seeking to challenge such a doctrine is to say that some leaker has already revealed enough about the program to render that legal defense void.

That the link is a terrible blow to our security, that the leaker is a disgusting person who ought to be prosecuted for aiding and abetting an enemy in a time of war, does not affect the legal position that if it is no longer secret, then it is no longer secret. The path to the lack of secrecy is not relevant.

Next, consider the doctrine of ‘a reasonable expectation of privacy.’ (Or REP as law students write in the shorthand.) If there is a reasonable expectation of privacy in a matter, the government needs probable cause (usually but not always in the form of a warrant). One thing that has emerged from the HP corporate pretext scandal is that snooping on phone records is a common tool. If you follow that link, you’ll find data brokerage services have a wide variety of clients that buy all sorts of phone records and other personal data.

That this is a terrible blow to out privacy, and that the people who engage in this practice are disgusting and ought to be sued for vicarious liability for identity theft whenever possible, does not affect the legal position that if there is no longer a reasonable expectation of privacy, then there is no longer a reasonable expectation of privacy.

It seems that if the government does not have recourse to the state secrets doctrine defense, then by the same logic there are many matters where it would not need to show probable cause anyway.

Is this a good thing? I am not sure. I do know that some specification from the Congress on how much power they gave the President in the AUMF would be welcome. (A point I alluded to earlier.)

The Senate Judiciary Committee has, in the meanwhile, approved surveillance legislation that does not require a warrant for certain things. The linked-to pdf file is 41 pages long, so I'm not reading it tonight, but my off-the-cuff reaction is to think greater specification in legislation is always a good thing.

Posted by Charles at 11:17 PM | Comments (2) | TrackBack

Vicarious Liability & Freedom

Just thinking today about who 'holds' data on the internet, and therefore who is responsible for it. The Internet can definitely be used maliciously, e.g. phishing scams and other identity theft, violations of intellectual property, and intrusions of privacy. It can also be used as a means of communications by Al-Qeada and similarly-minded folks. If we sue people who operate sites for the content put on by their users, or if we launch criminal ivnestigations of websites because of information or potential information, are we stunting the growth of the Internet (arguably the single greatest technological innovation for the freedoms of assembly, speech, and the liberty of information)?

We hold individuals responsible for their own actions on the net, presuming we can find them. But if someone were to print an actionable libel in the comment to this post, they can do so anonymously. Do we punish the site op for it? Do we demand that people monitor every little message that others post? Easy enough here, perhaps, but what about Craigslist? Or maybe we don't punish anyone lest we inhibit the robust communication fo the internet, and identity theft, libel, and copyright infrignement run rampant.

In short, who has that information, who is responsible for it, and what does being responsible for the actions of a third-party - i.e. vicarious liability - do to freedom and debate on the Net?

Congress has passed some pretty good legislation, mostly in the form of the Digital Millenium Copyright Act, found in the United States Code here, although wiki has far more comprehesible coverage here (especially of the notice and take-down provisions), which protects people who own a site where others comment or leave messages from being vicariously liable for the torts of others. You can look at all the ins and outs of the law yourself, but the point is really that we don't make people liable for the actions of others unless 1) they knew (or had reason as to why they should have known) of the offending activity, and 2) they were able to stop it or remedy it in a timely fashion and did not do so. Some basic definitions on the concept of being liable for the acts of others generally are found here and here.

It seems like the statute I quoted above is fairly workable. Society moves on, the Internet fourishes, and if it doesn't work that's a pity, someone lost some money. So...end of post, right?

No. Because now we come to the Global War on Terror. Now we must consider that the consequences of a lack of action goes beyond someone being defamed or someone spending 6 months dealing with a credit card that they never actually opened. Now the possibilities of WMDs in briefcases, sarin in the subways, or enough conventional explosives in the right place in a nuclear reactor make us less sanguine about missing the data. Dead people can't post their opinion on a forum.

If terrorists are organizing their activities over the Internet, is that information public or private? Keep in mind the GWoT is different than any other large-scale conflict before it due to the ultimate importance of intelligence in military operations. In conventional warfare intelligence is an edge. In assymetrical warfare, you can't even fight without it, because you can't find the enemy.

If someone has something on their hard drive, that's their place, their home, their "reasonable expectation of privacy" (the key phrase for when probable cause is needed, usually met with a warrant but not necessarily), and thus the 4th Amendment says going in there without probable cause is unreasonable, and therefore not allowed.

Ah, but when you send something from your computer to your friend's computer, is there a reasonable expectation of privacy? It gets copied and broken up into packets and reassembled several times along the way. backups of your email or file exist as ghosts in cyberspace for a while. Is there a "reasonable expectation of privacy" for those electronic ghosts? Does it matter whose servers they are on?

I have no real conclusions to offer, just some food for thought. Here are some morsels.

A lawyer is subject to professional discipline which can include fines and loss of a license to rpactcie law for violating client confidentiality. Is sending sensitive client information via email confidential enough? Some thoughts on the subject here, here, here, and also here

Canada has stricter legsilation and a stronger constitutional basis for privacy issues than does our Federal Constitution, how are they dealing with internet surveillance? With great trepidation.

If the IP address tells me that someone in your building of thousands of computers tried to or did in fact damage me, can I sue you for all of your proprietary business information about shifts and locations of workers? Keep an eye on this case.

There's also a nicely detailed paper about how the DMCA was working in the pre-9/11 world here.

Posted by Charles at 05:47 PM | Comments (2) | TrackBack

Non-citizens Under The Constitution

Aaron wrote a good piece are about how Constitutional rights are not given to non-citizens, in response a rather childish and uneducated letter. Aaron's post received a rather childish and uneducated comment from someone who actually thinks that all constitutional rights are given to non-citizens.

Just for the fun of it, let's actually read the 14th Amendment. (Actually reading things before he comments on them is not a certain commentator's strong point.)

The 14th Amendment to the Constitution says that no “person” shall be denied equal protection of the laws. Since the Equal Protection Clause specifically says “person” and not “citizen,” the Supreme Court long ago said that non-citizens have access to the protection of law in our court system. (See Yick Wo v. Hopkins, 118 U.S. 356 (1886)) But by looking at the 14th Amendment’s Privileges or Immunities Clause in the same section we see it specifically says “citizen.” Therefore some discrepency between citizen and non-citizen is established in the text. The Supreme Court has ruled, based on this wording, that discriminatory treatment of non-citizens by statute or executive order will not necessarily fail. Specifically, the Supreme Court has ruled that Congress’ plenary power to control some things (like immigration) and the President’s duty to protect the country both require greater judicial deference, and as such a far less strict judicial review takes place. (See e.g. Mathews v. Diaz, 426 U.S. 67 (1976), upholding a law denying Medicaid benefits to aliens not admitted for permanent residence) However, such deference is not extended to administrative agencies when they act without direct executive order. (See Hamptom v. Wong, 426 U.S. 88 (1976)) President Bush issued an executive order on the detention of non-citizens on November 13, 2001, and it is based on this executive order that terrorists are detained at Guantanamo.

Executive Order 66 FR 57833 is entitled “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” It was issued after the 9/11 attacks which is why Zacarias Moussaoui was not subject to it as he was arrested prior to its issuance. This multi-page order lays out the rules and guidelines for the Defense Department to follow in not processing certain non-citizens through the regular court system.

The Supreme Court has ruled on the "trial by military commission" issue of non-citizens, and found that the Uniform Code of Military Justice must be amended in order to allow it (See the Breyer and Kennedy concurrences in Hamdan v. Rumsfeld), but there is no constitutional problem per se with doing so, merely a pre-existing statutory discrepency. Congress is in the middle of adjusting the UCMJ. In the same opinion, one does not find that the ability of the Executive to detain non-citizens is offensive to the Constitution, not even in Justcie Stevens' opinion.

To recap the above paragraph, the case that most sharply limited the Executive's power in dealing with terrorists said nothing about either a Constitutional right to not be detained OR a Constitutional right to a criminal trial. In fact, the opinion doesn't even disallow military commissions, it just says that until the UCMJ is altered all such commissions prosecuted by the Pentagon must be identical.

To say that the Constitution applies full-bore to non-citizens is an utter fallacy that can only be garnered by refusing to read the text of the 14th Amendment, and closing one's eyes to over a century of jurisprudence. Aaron was clearly correct in his post. Khalid Al-Odah, and those who take his position, have no support from the USSC.

A more detailed legal analysis of this issue can be found in Erwin Chemerinsky's "Constitutional Law" on pages 671-680 (Aspen Publishers 2001).

Posted by Charles at 04:52 PM | Comments (3) | TrackBack

Internetty Legal Picking

(This is just a whimsical post of links to odd Cyberlaw stories. And no, Cyberlaw is a legal subject, it is NOT about those shameful dreams you have with the cast of L.A. Law, please keep those to yourself.)

A Federal Judge asked the FBI why they didn't "just Google" people instead of going through a complicated FOIA request.

Another 'watchdog group' makes news by pointing out the obvious (AOL is badware? no kidding!).

A very, very cool idea is introduced here, it's a wiki for patent applications! (I could have used that in my 2L year).

One teenager hires another teenager to hack for him and goes to jail. (Moral of the story, solicitation of a crime is a crime itself, so do this garbage before you're 18.) Of course hacking and identity theft is such a big, bad deal, so it's good to see that those who do it get sent to their room. (All hope is not lost, one SOB just got 3 years of being someone's tushy monkey for a virus attack.)

And finally, a judge in Cajun Country says that a law blocking minors from buying video games violates free speech. I only wish he had been a judge where I was a teenager and ruled the same about drinking. Ah, well.

That's all for now. I'm off to go cast magic missile at the darkness.

(This post as cross-posted at my personal blog, which I can assure you is a total waste of your time.)

Posted by Charles at 11:00 AM | Comments (3) | TrackBack

AUMF vs. FISA, That's The Entire Thing

When I signed on to do an occasional post on LLP, I thought I would drop an article once every two weeks, max. Then Judge Taylor's ruling came down on Thrusday and I went to work. It took me this, this, this, and finally this to cover it all.

I don't like it. Sometimes succinct is better than thorough. The posts were just too big.

So I'm going to sum it up all in the title. Everything boils down to AUMF vs. FISA.

If AUMF is a declaration of war, FISA is irrelevant. If AUMF is not a declaration of war, or if it is but for some reason it does not include intelligence-gathering in the politically safe words "all approrpiate and necessary," then FISA is judged against the AUMF, and it is very likely that Judge's Taylor's analysis wins.

I think you have to agree with that, no matetr where you stand on this. Perhaps you think I read Ex Parte Quirin too broadly, or Hamdi too narrowly, but in the end I don't think there is any other legal conclusion that you can make about what this entire thing revolves around. It's AUMF vs. FISA. To let my geek side show, the argument is equivalent to the Hulk vs. Superman.

(Had I said that in ConLaw class, I think I would have been thrown out of law school.)

Granted, there is no set language for a declaration of war, but also grant that if the Congress deliberately uses subjective language then we are all forced to watch the lawsuits unfold and come to an end before we know exactly what's going on. I've made my opinion clear that I don't think FISA is on the same playing field as a declaration of war, and I think I will gladly depart from this subject for now.

Posted by Charles at 11:10 AM | Comments (4) | TrackBack

Through Flawed Analogies, A Forfeit Is Declared (part 3 of 3)

Hm, I started a part 2.5 on Friday, saved it as a draft, and when I updated it tonight I thought I updated the date. I didn't, and it got pushed back in the shuffle. It's here. I don't know how great my analysis is, but there's a bunch of good links at the end.

Okay, continuing on with the ruling that started it all. Friday's WSJ op-ed entitled "President Taylor" raised some cases the judge did not cite, but I haven't read them, so I'm sticking to the ruling itself for now. But first we need to discuss Ex Parte Quirin and Hamdi.

Ex Parte Quirin dealt with a bunch of German sabotuers, some with American citizenship. They had been detained militarily, and been subject to a military tribunal rather than a regular court. They appealed the process, but they lost and they were hanged. The crux of the ruling was two things, 1) they admitted that they were enemy combatants (contra the petitioners in Hamdi and Hamdan, and 2) the 5th and 6th Amendments do not apply to military actions as they were written for anti-criminal law enforcement actions, not military actions. The court there differentiated all military actions from domestic law-enforcement. The 5th and 6th Amendments were mentioned because they were the subject of the appeal, but the logic applies to the 4th Amendment as well.

"What? Is there no protection of our 4th Amendment rights just because we are in a time of war?" No. The intelligence-gathering would have to be directly related to the war, for one thing, and for another thing, recall that the penalty for a 4th Amendment violation is excluding the information gained as evidence.

Get that? That's very key. When the 4th Amendment is violated, the information gathered cannot be used in a court of law.

Which means jack-diddly-squat to the Coast Guard forces intercepting the freighter with the WMD, the Army forces blowing up the factory where IEDs are manufactured, the Air Force bombing the hidden cave system, or the Marines giving AlQeada's middle management a 3AM good morning call with the business end of a rifle.

Ah, but with assymetrical warfare against an enemy such as a terrorist organization, where is the line between criminal activity and war? Two bozos who hold up a liquor store shouting Hezbo propaganda can't be thrown into military detention, can they? No, and that hypothetical was an easy one. I admit that the line can be fuzzy. But a call coming into the US from an AlQeada operative is easily on the military side of that line.

Next we have Hamdi. Hamdi was the most fractured ruling I have ever seen come out of the USSC, and as such one should be careful when citing it. To make a long story short, US forces captured Hamdi on the abttlefield in Afghanistan, Hamdi being a US citizen. US says you are an enemy combatant, off to Gitmo for you. Hamdi says I was an aid worker (with a gun, but it's a dangerous palce), I'm Mr. In-the-wrong-place-at-the-wrong-time. The appellate court had said "We wash our hands, it's a military thing and non-justicable, no 5th Amendment right to a trial, a military tribunal alrady found that you were not an aid worker." This meant indefinite detention for Mr. Hamdi, because since AlQeada is not an arm of a foreign government, no one would ever negotiate for his release at the end of hostilities. The fear of indefinite detention reverberated through the USSC opinion.

Justice Saclia and Justice Stevens ruled together (do you hear a show tune?) that there was no way that a citizen could be detained in the fashion that Mr. Hamdi was without Congress specifically suspending Habeas Corpus rights, as stated in the Constitution, Article I, §9, clause 2. (Hamdi at 554 and 568-569) Justice Thomas took the position that the detainment of enemy combatants was a wholly Article II war-making power, and thus the judiciary could issue no ruling on the matter. Mr. Hamdi was at the mercy of the Executive Branch. (Hamdi at 579) Justices O’Connor, Breyer, Kennedy, and Chief Justice Rhenquist took the position that the Congressional authorization of force allowed for detainment of citizens, but that the 5th Amendment gave citizens a right to challenge their being labeled a combatant as a threshold matter. That challenge would be made in a Federal courtroom with all of the Federal Rules of Evidence applying, but if found as an enemy combatant the Defendant would be then under the jurisdiction of the armed forces, i.e. the Executive Branch, and could potentially be detained indefinitely as Justice Thomas said. Note that this plurality of four justcies is now two, because Chief Justice Rhenquist has passed away, and Justice O'Connor has retired. Finally Justices Souter and Ginsburg found that Congress could write language that would make them agree with the plurality of four, but that they found the language of the AUMF to be too vague to support that proposition, because of a pre-existing statute against detention of U.S. citizens, 18 U.S.C. §4001(a), that was adopted specifically to preclude citizen detentions like those of Americans of Japanese ancestry in World War II. (Hamdi at 542-543)

Ah! Does the Souter-Ginsburg concurrence which says "AUMF too vague to beat pre-existing 18 U.S.C. §4001(a)" allow for an analogy that "AUMF too vague to beat pre-existing FISA?" Well, no. For one thing, only two justices out of nine came to that conclusion. For another, the matter there was indefinite detention, with a strong possibility of never leaving detention, whereas contra here, where the matter is listening to a phone call. The implications for liberty are very, very different.

In section five of Judge Taylor's ruling, Ex Parte Quirin is suspiciously absent, and she repeats her original assertation that the AUMF must deal with FISA. Again, she does not see this as a war-making matter. It part six her First Amendment analogies of speech being chilled by this are dubious at best, and I'm too tired to detail the why I disagree with her cases cited. I will point out that she says on pages 32-33 that FISA explicitly says you can't consider a person an agent of a foreign power solely based on activities protected by the First Amendment, implying that it is their speech content that causes their phone conversation to be recorded, not the identitiy of the person at the other end of the line. Her seventh section is a good first-year law student's guide to the zones of presidential power as explained by the Youngstown Sheet & Tube decision, and as such falls short because of her error in section eight about the AUMF's granting the President the ability to prosecute a war (which in cludes use of intelligence-gathering).

Finally we come to her ninth section, on inherent powers, the one that caused the Wall Street Journal to scornfully title their editorial "President Taylor." She says on page 40 "We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully applicable to the Executive branch's actions, and therefore it can only follow that the First and Fourth Amendments must be applicable as well."

Excuse me? Are there two Hamdi cases? What is she talking about? The Hamdi case NEVER fully applied the Fifth Amendment! Not in the Souter-Ginsburg concurrence and not even in the Scalia-Stevens dissent! (Justices Scalia and Stevens made it very clear that for them it was a detention issue as it related to a right of the people in Article I, Section 9, paragraph 2, NOT the 5th Amendment.)

I do not know how Judge Taylor ever got to the conclusion she did.It is baffling to me.

That's my thoughts on the ruling. Thanks for sticking with me on the legal analysis. As for the political fallout...For now I leave that to Hugh Hewitt.

Have a great week!

Posted by Charles at 01:13 AM | Comments (0) | TrackBack

Through Flawed Analogies, A Forfeit Is Declared (part 2.5 of 3)

I was going to put my analysis of section two in the same post as my analysis of section eight, because I think that they are the two key sections (in that everything flows from them), but it doesn't seem to make sense to be harshly critical of section eight in one post, and then turn around and praise section two for its scholarship in the same post.

So, section two, on the question of the state secrets' privilege. As I said in the previous post, questions of evidentiary privilege were deliberately left to the judicial branch by the Congress when drafting the Federal Rules of Evidence. Judge Taylor has only precedent of her circuit to follow, and the USSC's precedent of course, and her own understanding of the facts as they exist in the pleadings and evidentiary record so far.

The judge does a very good job in bringing in just about every relevant piece of case law on point, and of explaining the different ways that the privilege applies. I won't go through every bit of it, but I find her scholarship very thorough on the matter. I was curious that she put a Sixth Circuit ruling (Tenenbaum v. Simonini, referenced on page 9 of her opinion) in the middle of everything without pointing out that of all the cases she cites (aside from the USSC cases of course) it is the only one that controls her. (A map of the Circuits can be found here.)

That case seems to put the burden of proof on the plaintiff to prove that the matter is not a state secret once the defendant says "I could defend myself were it not a state secret." However on pages 12 and 13 of the judge's ruling she seems to place the burden of proof on the defendant. I suspect (and I reiterate that I have not seen the rulings) that she severed the state secrets in question from the admission of the President, and did not come to the conclusion that the secrets being kept back could qualify what was already admitted to. (And indeed she seems to say as much on page 14.) If you accept her initial premise about the AUMF being on par with FISA instead of superceding it, her logic isn't bad. (But it still counts as a forfeit rather than a win, hence my choice of title.)

Part 3 is coming soon. Here's a links roundup to keep you busy until then:

As I said in my original post, I think that there are some serious problems with the standing section, but enough standing remains (I was thinking in the attorney-client privilege area) to keep the suit viable. Debbie Schlussel disagrees here. The Washington Post has there own problems with the opinion here. According to S. Cotus in a post here, the Plaintiffs agreed to the stay of injunction. He also links to a post here that says the Sixth Circuit has reversed a similar case. One of the better Constitutional Blawgs has a nice round-up piece on the opinion here (which puts what I am doing to shame) with nice links to differing opinions. Oddly, the Sixth Circuit Blog has had nothing to say on this, I hope they'll post something next week. Kip at A Stitch in Time (perhaps the best libertarian Blawg there is) defends the ruling very strongly in a post here. If you disagree with what I have written you are likely to enjoy his work.

Posted by Charles at 04:31 PM | Comments (5) | TrackBack

Through Flawed Analogies, A Forfeit Is Declared (part 2 of 3)

The Wall Street Journal has an op-ed piece today hitting many of the salient points I was going to cover in parts 2 and 3 of this post. Of course being beaten to a legal analysis by the fine minds at the WSJ isn't something to be ashamed of. The WSJ is also reporting that the injunction is being stayed for the course of the appeal, which is how things usually operate, so the program in question is still operating and protecting us.

This post deals with the very strange conclusions in section eight of Judge Taylor's order, and then with the more solid section two of her order. The link to the order is again, here. Section eight begins on page 37, where the most eye-popping statements can be found.

Section eight is about whether or not the AUMF, as the later legislative act, supercedes FISA. The judge quotes the AUMF, and says that the government argues that through this it was given the authority to conduct the program "in violation of both FISA and the Constitution." That language is the first tip-off to the judge's world-view. The judge sees the AUMF as being level and equal with FISA, and thus begins by saying FISA is "violated," then seeks to see if the violation is justified. The accurate analysis would be to see if FISA was superceded, because FISA would not apply at all. (Whether the program violates the Constitution - and it doesn't - I will discuss in part 3. Or you could simply read today's WSJ op-ed. Or before becoming a Federal judge you could actually read one of the seminal cases on wartime activities. But I digress.)

The judge then says something that makes me wonder what planet she's on. Indeed, this is the absolute craziest thing I have read in a legal opinion after three years of reading them. At the bottom of page 37 (the underlining is mine):

"[T]his court must note that the AUMF says nothing whatsoever of intelligence or surveillance."

Digest that for a moment. The Congress says go to war, but do not use intelligence in this war! Use all necessary and appropriate force to fight a war, except for intelligence! For the first time in our nation's history, we are to act militarily without using intelligence-gathering capabilities! Against an enemy in civilian clothing that constantly seeks to hide its presence!

According to this statement, when we train a satellite on Shahi-kot, we're going beyond what the Congress authorized.

She continues on page 38 to argue that FISA and other previous statutory regimes still control, even after the AUMF, and since they are equal in her eyes, the common rule of statutory interpretation that the specific governs the general still applies. Except that this rule only applies when both legislative actions are pointed at accomplishing the same goal. (The case she cites from is here.)

The only way I can possibly understand how the judge thinks FISA and the AUMF are pointed at accomplishing the same goal is to recall soemthing many right-wing pundits have said, which is that many on the left see terrorism as a law-enforcement issue rather than a military issue. This would also explain why she thinks FISA is not superceded by the AUMF, and why she thinks you can fight a war without intelligence. To her this is not a war. It's another version of President Clinton's promise of 100,000 new police officers on the street.

In the remaining part of section eight she misapplies Hamdi, which for reasons of brevity (brevity, in a legal paper - it is to laugh) I plan to include in my next post on this where I go over section nine of her ruling.

NOW, to turn things back a bit, I do have to say that section two is likely the strongest part of the ruling. It begins on page 3, and discusses the privilege of the govenrment to refuse to answer allegations, discovery requests, or other attempts by a Plaintiff to acquire ifnormation whose exposure could be dangerous to national security. Before you read it, look at Federal Rule of Evidence 501 regarding privileges. Pretty general stuff, isn't it? There is no hard and fast rule because when the Federal Rules of Evidence were being made the Congress desired flexibility with regard to privileges, and therefore they left the laws of what privileges work when and how up to the courts, which of course emans either up to the USSC or the various appellatte courts if the USSC should choose to not review a case. (The USSC is petitioned to review almost 75,000 cases from the Federal Circuit courts alone every year, plus however many are petitioned from the state supreme courts, and the USSC only handles 80-90 cases a year.)

As a result, it should be no surprise that Judge Taylor spends about 12 pages citing case after case, and discussing whether they apply or not. As this post is already very long, and my wife just came home with the kids, I will have to update this posting - hopefully later today.

Posted by Charles at 12:05 PM | Comments (3) | TrackBack

Through Flawed Analogies, A Forfeit Is Declared (part 1 of 3)

The big legal news today was that a Carter-appointed judge found the President’s surveillance program to be illegal, and issued an injunction against it after granting summary judgement on some counts to the plaintiffs in ACLU v. NSA, Case No. 06-CV-10204. The ruling can be found here. The judge found that there was a program of actually intercepting the contents of phone calls coming into the country from known Al-Qeada associates and operatives. The judge found that the program as she knew it violated FISA, the First and Fourth Amendments to the Constitution, and the Separation of Powers doctrine. I find some of her ruling to be on target, but some of it to be very flawed.

As a disclaimer, I do not have access to all of the pleadings, as I am not a subscriber to the PACER system. The pleadings are available for free at the courthouse that issued the ruling, of course, if you want to travel there. But I don’t have the pleadings, so my analysis may be flawed.

In any event, this is going to be a long post, and there will be another two like it. The linchpin of the ruling is section two, and if you want to boil my take on the ruling down to one phrase, it would be “The government was not found to have lost, they were found to have forfeited.” That will be more explained in my second post. This is my first post on what I plan to be three posts on the subject, and its purpose is to lay out some of the preliminary issues. Details follow.

Essentially the judge refused to allow the state secrets privilege to come into play, and the government refused to give the judge certain evidence that was of a confidential nature. If you accept the judge’s ruling that the state secrets’ doctrine does not apply, then her injunction follows logically (if not several other aspects to the ruling). After all, the NSA refused to rebut many of the Plaintiffs' allegations due to national security concerns, so no substantial defense was made.

The first thing to realize is that this is not the phone-numbers-collection program discussed in the USA Today article here. The program was never a violation of FISA to begin with due to the fact that it acquired non-content information. See Aaron’s post here, or read me on my ranting blog here and here. This is instead about a program that intercepts international telephone and Internet communications, content and all. The judge states that there is no judicial approval (meaning no subpoena or warrant) of these intercepts. I take the judge at her word because I do not have access to the pleadings. It may very well be that there is some sort of judicial approval that the NSA does not wish to divulge.

The judge relies on a statement by President Bush recorded here. In it, he says: “As President and Commander-in-Chief...the United States Congress also granted me additional authority to use military force against al Qaeda (emphasis mine).......consistent with U.S. law and the Constitution, I authorized the interception of international communications of people with known links to al Qaeda and related terrorist organizations.”

In other words, because he was authorized to make war, he is authorized to collect intelligence as is necessary to make war. This is an argument that the AUMF superceded FISA. There could also be for a Constitutional superceding of FISA rather than a statutory one, but the NSA did not seem to make that claim except in an alternative argument. (Certainly the administration would be taking a huge risk in acting in reliance on that theory alone.)

Now, the judge’s proof to the nature of the program and its timing is the statement made by the President, quoted above. It is likely the judge had to rely on the statement at a press conference, because she seemed to have gotten little from the NSA in the way of evidence. But this means that the judge should take the President at his word for the rest of the statement as well. (Again, I do not have the peladings, and also note I would obviosly not have any in camera porceedings available to me.)

The AUMF states in relevant part "That the President is authorized to use all necessary and appropriate force...in order to prevent any future acts of international terrorism..." (emphasis mine). See copies of the act here and here. Now the question is, what do the words "all necessary and appropriate force" mean? Politicians tend to use a lot of subjective language like that in legislation, and then judges have the uneviable task of trying to figure out what it emans years later when all the politicians involved in signing it in the first place have changed their minds about it three or four times depending on polling data. In fact the difference between the four-justice plurality and the Ginsburg-Souter concurrence in Hamdi v. Rumsfeld centered on this issue.

KEY PARAGRAPH: It is not unreasonable that it means actions taken in previous armed conflicts should be allowed to be taken again. That means that the AUMF allows for intelligence-gathering, and it is not blocked by previous legislation on the matter, including FISA. In fact there is an even stronger basis to say that the AUMF allows for intelliegence gathering in spite of FISA regulations than there is to say that the AUMF allows for military detention of United States citizens (the issue in Hamdi), given both the greater assault on liberty that detention is, and the AUMF's prevention clause that I italicized above.

Note further that we see an indication of congressional intent approving this in the President's statement. The President stated “Leaders in the United States Congress have been briefed more than a dozen times on this program,” and those leaders did not start objecting to it until the USA Today story broke and the left-wing bloggers were incensed.

Ah, but we only have the President’s word for that, you ask? Yes but it is the President’s word that the judge is using as acceptable evidence. In the Talmud, the expression is “hapeh sheossur hapeh shehetter,” “the mouth that forbids is the mouth that permits.” This refers to a case wherein the same person testifies something bad about themselves, and then immediately qualifies the incriminating statement with one that exonerates themselves. The rule is that one cannot take only the first half of the statement. Since when do the Federal courts follow the words of the Talmud, you ask? Since it’s a matter of common sense. Or it should be. There's also a little thing called the rule of completeness as codified in FRE 106.

So members of both parties had been briefed on the operation, and they seemed to think that the AUMF superceded FISA.

This ends the first part of my entry on the subject. Part two will deal with an analysis of sections two and eight of her ruling, dealing with the state secrets’ privilege and the AUMF’s meaning, respectively. In part three I will discuss why her fifth section on Fourth Amendment jurisprudence is flawed (mostly because she ignores a key distinction from Ex Parte Quirrin, 317 U.S. 1 (1942) about the non-applicability of the Fourth Amendment in military matters), why her sixth section on the First Amendment is flawed, and why her ninth section misapplies the Hamdi decision (542 U.S. 507 (2004)). Section seven has only one major flaw, which is similar to her misinterpretation of Hamdi, and I will detail it if space permits.

I do not deal with section three, on the standing issue, because while there are parts I disagree with, enough is left that it on solid ground. I do not deal with section four, which deals with the statutory and jurisprudence history of electronic surveillance, including FISA, because if the AUMF argument in section eight does in fact stand, that point is moot. Likewise section ten, the practical arguments for a legal exclusion for the program (of which many are ignored), becomes moot when the issues in the paragraph above are dealt with. Section eleven is the conclusions restated, and as such there is no need to go over it.

Of course it doesn’t need to me said that my conclusions about her ruling are legally irrelevant. Only the Appellate Court, and perhaps the Supreme Court, will decide if the ruling is correct. But hopefully this and the other two entries that I intend will make the matter clearer for everyone.

Posted by Charles at 11:58 AM | Comments (16) | TrackBack

Signing Statement Silliness

Of late there has been a much-ado-about-nothing in the media regarding signing statements. (1) (2) President Bush has been accused of using signing statements more than any other President, and of therefore somehow eroding the checks and balances in the Federalist system. I'm going to take the position that signing statements are neither relevant nor new, and that they pose no danger to the Republic by an increase in frequency.

To begin with, you must understand that signing statements have no legal force. None whatsoever. They are frippery, with about as much significance to the legal process as the stripes on the sleeves of the late Chief Justice William Rehnquist. Signing statements are things that a president writes (or says) when he signs a bill into law, and they usually are emotive things like ‘This law respects the great importance of our waterways.’ Every once in a while a president will sign a bill, and the signing statement will say ‘This is a good bill except for section XYZ, which I believe is unconstitutional and therefore I will not enforce it.’

This is not a veto. It is an opinion by the Chief Executive who is tasked with defending the Constitution that a part of the law is injurious to the Constitution. The law is still a good law. The law can still be enforced, by government entities or private parties, depending on its nature. The law is still on the books for the next presidential administration.

The question can be raised, but what about this administration? Can a president refuse to enforce a section of law? The answer is yes; it is called executive discretion. Many laws on the books are not actively enforced by government entities due to priorities in other areas. For example, the FBI may assign only one agent, or even no agents, to deal with a certain category of crime that they feel is non-existent, or of low-priority, compared to other categories of crime. The only checks on executive discretion are elections and the impeachment process (and possibly the Senate confirmation process).

Next one would ask whether this statement of intended executive discretion (which is all this is, an honest statement of how the executive intends to act) is in fact corrosive to the checks and balances system that is at the core of our system of government. The thing to keep in mind is that signing statements are not new. President Monroe used them. For almost two centuries, presidents have signed bills into law while saying that they do not believe part of the bill is constitutional. The Republic still stands.

That President Bush is being accused of using these signing statements more than other administrations is not necessarily true, but irrelevant besides. If it is a constitutional thing to do, then the frequency of occurrence does not suddenly make it unconstitutional.

This is really the core of my position. If it is constitutional, it is constitutional regardless of how often it happens. For example, if administrative agencies are constitutional (because the non-delegation doctrine has been rejected, see Mistretta v. U.S., and then note that the author of the Mistretta dissent wrote Whitman v. American trucking Assoc., Inc.), then the number of agencies are not a constitutional issue for the courts, they are left to the political process (see the 1980 presidential election). The frequency of signing statements is irrelevant.

In any event, I think that the number of such statements issued is more accurately tabulated by the provisions so designated compared to the number of provisions passed. In other words, the percentage will tell more than the number, and given the current administration’s reluctance to use a veto, the second side of that ratio is probably higher than many people suspect. I believe that if someone were to tabulate that, they would not get the ‘750 laws’ figure.

The Senate is weighing legislation to fast-track judicial review of laws in response to signing statements here. The ABA disagrees with me here. The Federalist Society agrees with me here. A law professor compares the Clinton administration and the Bush 43 administration regarding the matter here. Laurence Tribe weighs in here. For whatever it’s worth, Wikipedia’s entry is here.

Oh, and a plug for my friend’s role-playing game that just debuted at GenCon is here…not that it has anything to do with my post.

Posted by Charles at 01:12 AM | Comments (17) | TrackBack