January 6, 2014 § Leave a comment
Two federal district judges, within the past two weeks, have rendered squarely opposing decisions concerning the constitutionality of NSA’s collection of metadata. That metadata, accumulated continuously since 2006, consists of the daily acquisition of the following information from all major carriers of telephonic communication within the United States: The time, date and duration of every telephone call made within, to or from any telephone in the U.S.; the length of the call; the telephone numbers of the source and destination of the call; and the transmission tower which transmitted the call (thus identifying the physical location near where the call was made). This metadata is held in NSA databanks, where it is retained for five years.
In the following post I will write about these two decisions, my opinions of them and what I perceive as serious implications from their rulings for the future of our country.
One reason lawyers’ writing fails to command the attention of ordinary readers is that they don’t think like ordinary people. Lawyers, like me, try to reason toward a conclusion by first stating the bases that lead to it. After setting out those bases, the lawyer triumphantly announces the conclusion.
Newspaper reporters and writers, who write for a living, call this “burying the lead”. The idea is not to bore the reader with long descriptions of facts, events and opinions before disclosing the purpose of the piece.
This is an effort to avoid that pitfall.
The two court decisions discussed below involve some very important legal issues that significantly affect the relationship between all of us and government, both federal, state and local:
In this digital age, our communication capability depends on use of third-party facilities that relay the expression of our thoughts about everything in our lives: Satellites, telephone towers and switch complexes, coaxial cables, and an array of other “hubs” that pick up the signals we emit from our phones, Ipads and computers and send them on their way to specific or general destinations chosen by us. When property law is applied to those processes, the result is that we transfer ownership of our thoughts to those “hubs” when we tap screens or buttons on our communication devices. So, when government wants to know what we are up to, it doesn’t have to involve us or even make us aware of its curiosity. It can go to the “hubs” and intercept all the information it wants.
An ancillary legal result of this the legal principle declares that if we share information about ourselves with a third party, we can no longer claim that it is private, not available for the scrutiny of others. This idea that allowing one peep from one person entitles the world to peep is, fortunately, subject to an important exception: If society reasonably believes that, regardless of having involved a third party in the transmission of our information, it should nevertheless be private and unavailable to unauthorized disclosure, then the Fourth Amendment imposes restrictions of government’s right to access it.
The Supreme Court has grappled with these principles for decades. One case involved a policeman, sans warrant, sticking a tape recorder to the side of a telephone booth and recording Mr. Katz’s end of a telephone conversation. The Court held this violated the Fourth Amendment. In another case, again warrant-less, police went to the telephone company switch room and attached a pen register that recorded every telephone number dialed by Mr. Smith for a period of thirteen days. The Court decided that this did not violate the Fourth Amendment because Mr. Smith was presumed to know that the numbers he dialed were recorded by the telephone company. Why? Because every month he received a bill that listed those numbers. So, five members of the Court ruled that he should have known that the government might have access to that information.
We now know, thanks to Edward Snowden that, since 2006, NSA has obtained, from all domestic telephone carriers, copies of every telephone call made to or from every telephone in the United States and has retained a database consisting of that information for the past five years. This has been done without any warrant claiming any of the callers were guilty of any wrongdoing. The accumulation of this information has been done pursuant to orders of the FISA court, but the only justification for securing those orders has been a showing that the information was relevant to the effort to thwart terrorism.
The two federal district court cases discussed in the following essay represent two opposing views of the above mentioned legal principles and their proper application to this metadata acquisition and accumulation. If the Supreme Court ultimately decides that we are like Mr. Smith, then any government agency can track all of our communications, telephonic or otherwise, if they involve third party hubs. They won’t be able to listen to our conversations but they will be able to know whom we communicated with and who communicated with us, when, for how long and where we were when the communication occurred.
If they decide, as Judge Leon did in the Klayman case, that we did not reasonable anticipate, when me engaged in digital communication for the past five years, that the government would be tracking each of those communications and maintaining a record of them available for future access, then the Fourth Amendment will protect us. If they agree with Judge Paulley’s decision in the A.C.L.U. case, the Fourth Amendment will be inapplicable.
I believe this is a turning point in this experiment of ours: How to balance freedom and security in a democracy. If the Fourth Amendment allows the federal government to do what NSA has done, that same Fourth Amendment is the only barrier to the same kind of surveillance by state and local government agencies. Everyone wants to be protected from a terrorist bomb. I believe too little attention is being paid to the danger of NSA type surveillance by the Ted Cruz administration or by some rural county sheriff targeting political enemies or by the DEA waging the “war on drugs”.
So, here is my “lead”. If you are interested in how two federal district judges have reacted to these issues, read on.
The Judges and the Parties
Judge Richard Leon was a classmate of later-to-be Supreme Court Justice Clarence Thomas. He was appointed to be a federal district judge in the D.C. Circuit by President George Bush.
Judge William Pauley III was appointed to be a federal district judge in the Southern District of New York by President Bill Clinton.
Larry Klayman is counsel for the plaintiffs in the Klayman case. Ignoring the time-honored maxim that a lawyer representing himself has a fool for a client, Klayman is both counsel and one of five plaintiffs in the case. His career exemplifies the reason lawyers have a bad reputation: In 1988, he sued his mother for $50,000, seeking reimbursement for medical expenses incurred on behalf of his grandmother. His brother reported this to Newsweek and, when it published the information, Larry Klayman blamed the Clinton White House, with which he had been feuding. Two different federal judges, one in California and one in New York, banned him from appearing in their court because of his misbehavior. The Florida Bar Association publicly reprimanded him for mishandling a suit for a client. He has filed numerous suits against government agencies. He sued Rachel Maddow for defamation. The case was dismissed and he was ordered to pay several thousand dollars to reimburse her for defending the groundless suit. This is only part of a Wikipedia description of this lawyer. Unfortunately, he is in charge of an important lawsuit.
The other named plaintiff, Charles Strange, is the father of a former NSA employee who was killed in a Seal Team operation. His apparent motivation for this litigation is based on his belief that NSA was responsible for his son’s death. Judge Leon dismissed the claims made by the remaining three plaintiffs because they were not subscribers to any telephone carrier. There is no apparent explanation for Klayman choosing himself, Mr. Strange and three others who did not subscribe to telephone service as plaintiffs seeking relief in federal court for the government’s misuse of telephone service. Surely, of the more than 250 million telephone subscribers in America, there were other more appropriate plaintiffs. But, who am I to argue with success?
Klayman intends to expand his suit as a class action. Judge Leon has made no ruling on that application. One issue will be whether Klayman and Strange are appropriate representatives of what will surely be a very large class or telephone users. That may prove to be an interesting issue.
The Klayman Decision
Having expressed my opinion, in several thousand words, of the NSA’s metadata accumulation, I assume it is obvious that I agree with Judge Leon and disagree with Judge Pauley. So, I am certainly biased. But, if you read even a part of Judge Leon’s opinion, I think you will see that he has crafted a creative opinion, dealing fully with the counter arguments he anticipates and carefully declining to rule on issues unnecessary to his conclusion.
The Standing Issue
Federal courts have limited jurisdiction. Before they can render a judgment, they must have before them a “case or controversy”. This has been construed to mean that the party seeking relief must prove that he or she has sustained or will sustain a violation of some legal right if relief is not granted.
Before the Snowden disclosures, this was a serious barrier to obtaining judicial review of NSA’s surveillance practices. Secrecy prevented people from knowing the government had acquired information about their telephone subscriptions. So, they could not establish standing to challenge the activity. When documents disclosed by Snowden revealed that NSA maintained metadata consisting of every telephone number of every telephone used in the U.S., any telephone subscriber acquired at least an arguably valid claim of standing to challenge that NSA practice.
Once that threshold was breached, the issue became: Did the NSA’s acquisition of the information violate any right?
The ultimate outcome of the conflict between the Klayman case and the Clapper case depends on whether NSA’s collection of data about a telephone number without any claim that the subscriber has violated any law or regulation violates the subscriber’s rights.
Judge Leon’s Careful Limits on The Scope of His Decision
The judge wisely disclaims any opinion about the broad accumulation of internet, email and social media data in the program called “Prism”. He agreed that plaintiffs’ claims of injury because of that program were too vague and speculative to qualify for standing. Thus, he seeks to avoid conflict with the Supreme Court decision in Clapper v.Amnesty Int’l, wherein the Court held that Amnesty’s fears that their overseas telephone calls to clients and others would be intercepted by NSA were too speculative to qualify for standing to bring suit.
During oral argument Judge Leon asked Larry Klayman whether he had any evidence that the government had accessed any of his or Charles Strange’s online activity. Klayman responded, “I think they are messing with me.” Not surprisingly, the Judge decided this fell short of establishing standing to complain of government’s monitoring of internet traffic. In addition, Judge Leon’s opinion cites two statements by NSA that the process of wholesale accumulation of email and internet metadata was discontinued in 2011. [Page 4, footnote 6] Thus, the injunctive relief sought by the plaintiffs would be moot.
The Admiinistrative Procedure Act Claims
The plaintiffs alleged that NSA and the FISA court exceeded the authority granted by Congress when they ordered the acquisition of the telephonic metadata. The APA contains a broad grant of jurisdiction to federal courts to hear such claims.
Judge Leon ruled against the plaintiffs and included a lengthy analysis of the issue in his opinion. As construed by previous decisions, the general grant of jurisdiction in the APA is subject to an exception: If Congress has declared, or at least plainly implied, by other legislation, that challenges to the authority of a particular federal agency must be made according to a procedure specifically designed for making such challenges, that procedure must be followed and the general sweep of the APA procedure is inapplicable. Because the law creating the FISA court includes specific procedures for challenging its rulings, Judge Leon rules that the general grant of jurisdiction in the APA does not apply. He therefore denies all claims made by the plaintiffs based on the APA.
The Non-Subscriber Plaintiffs
As stated earlier, for reasons best known to him, Larry Klayman picked three of his plaintiffs from the relatively small number of Americans who have no telephone service. So, Judge Leon dismissed their claims because they had no basis for complaining about the government’s acquisition of telephone information..
To summarize, he limits his ruling to the accumulation and analysis of telephonic metadata. He bases his decision solely on the 4th Amendment, disclaiming any opinion about conflict with the 1st Amendment.
The Fourth Amendment Claims
The Statutory Basis For Government’s Acquisition and Use of Telephone Metadata
50 U.S.C. 1861, a part of the Patriot Act, has been construed to authorize the FBI to file an ex parte application in the FISA court seeking the right to seize and copy “call detail records” of all telephone calls made to and from telephones located in the U.S.. The application must include a “statement of facts showing that there are reasonable ground to believe that the tangible things sought are relevant to an authorized investigation. . .to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” quoted at page 11 [emphasis added]
As a result of Snowden’s disclosures, made though The Guardian, we now know that these applications have been filed and granted for the past seven years. Based on them, the NSA has required all domestic telephone carrier companies to forward to NSA each day, call detail records of every telephone call made within the U.S..
Here is a description of a “call detail record” taken from Judge Leon’s opinion, quoting from a FISA order disclosed by Snowden and acknowledged to be authentic by the government: “For purposes of this Order ‘telephony metadata’ includes comprehensive communications routing information, including but not limited to session identifying information(e.g., originating and terminating telephone number, International Mobile Subscriber Identity (IMSI) number, Internationsl Mobile Equipment Identity (IMEI) number, etc.), trunk identifier, telephone calling card numbers, and time and duration of call.” [page 15, footnote 16]
Based on FISA orders like the one just quoted, NSA has a five-year database containing that information obtained from all carriers
The Way NSA Accesses and Uses Its Five-Year Accumulation of Metadata
Judge Leon accepts the Government’s own description of its use of its metadata. The process starts with a ‘seed”, described as a telephone number originating with a person of whom NSA has a “reasonable, articulable suspicion” (RAS) as being somehow connected with a foreign terrorist organization. When the seed has been identified, the seed’s telephone number is used as a starting point for identifying others with whom the seed has been in contact.
Here is Judge Leon’s description of this process:
“In plain English,h this mean that if a search starts with a telephone number (123)456-7890 the first “hop” will include all the telephone numbers the “seed” has called or received calls from in the last five years (say, 100 numbers),the second hop will include all the telephone numbers that each of those 100 numbers has called or received calls from in the last five years (say 100 numbers for each of the “first hop” numbers” or 10,000 total), and the third hop will include all the phone numbers that each of those 10,000 numbers has called or received calls from in the past five years (say,100 calls for each of the “second hop” numbers or 1,000,000 total).” He concludes “. . . it is likely that the quantity of phone numbers captured in any given query would be very large.”. [Opinion page 18]
For more of the Judge’s analysis see footnote 21 at page 19 of the decision. The Judge remarks that the NSA spokeswoman who sought to trivialize the number of telephone numbers typically accessed in response to a RAS was guilty of a “glaring understatement” and that her assurance that the total number of telephone numbers analyzed based on a “seed” was a “small percentage” was “virtually meaningless when placed in context.” Judge Leon observed that, if one of the telephone numbers used to identify the “seed”‘s contact happened to be a Domino’s Pizza, the result would be expanded dramatically.
Here is Judge Leon’s description of NSA’s analysis process after the “three hop” search has created a new sub-group of telephone numbers:
““Once a query is conducted and it returns a universe of responsive records (i.e., a universe limited to records of communications within three hops from the seed), trained NSA analysts may then perform new searches and otherwise perform intelligence analysis within that universe of data without using RAS-approved search terms. [citation omitted] According to the Government, following the ‘chains of communication’ – which, for chains that cross different communications networks, is only possible if the metadata is aggregated – allows the analyst to discover information that may not be readily ascertainable through other, targeted intelligence-gathering techniques. [citation omitted] For example, the query might reveal that a seed telephone number has been in contact with a previously unknown U.S. telephone number – i.e., on the first hop. [citation omitted] And from there, ‘contact-chaining’ out to the second and third hops to examine the contacts made by that telephone number may reveal a contact with other telephone numbers already known to the Government to be associate with a foreign terrorist organization.” [Opinion, page 20]
Fourth Amendment Claims Not Precluded
As discussed earlier, Judge Leon ruled that Plaintiffs’ claims based on the APA were precluded by the Congress’s appeal procedure from actions by the FISA court. He distinguished that from preclusion of constitutional claims based on the Fourth Amendment. Citing Supreme Court precedent, he wrote that denying the right to bring a constitutional claim in federal court required a significantly more explicit expression of intent by Congress than required for precluding statutory claims. Here is his analysis:
““The presumption that judicial review of constitutional claims is available in federal district courts is a strong one [citation omitted] and if the . . . heightened standard is to mean anything, it is that Congress’s intent to preclude review of constitutional claims must be much clearer than that sufficient to who implied preclusion of statutory claims. Where, as here, core individual constitutional rights are implicated by Government action, Congress should not be able to cut off a citizen’s right to judicial review of that Government action simply because it intended for the conduct to remain secret by operation of the design of its statutory scheme. While Congress has great latitude to create statutory schemes like FISA, it may not hang a cloak of secrecy over the Constitution.” [Opinion, page 35][emphasis added]
The Plaintiff’s Claims That Their Telephone Numbers Were Accessed and Analyzed Are Not Speculative
Judge Leon rejected NSA’s contention that the Plaintiffs’ claims were speculative because they could not prove their particular telephone numbers had been accessed and analyzed. He caught the government simultaneously arguing that, to be effective in combating terrorism, it had to have access to all telephone numbers; then contending that the Plaintiff’s telephone numbers may not have been accessed or analyzed. His demolition of this twisted logic is a pleasure to read. Here is a footnote that is a classic piece of lawyering: Cutting through complexity with easily understood analogy.
““The difference between querying a phone number belonging to a domestic Verizon subscriber (for which metadata has been collected) and querying a foreign number (for which metadata has not been collected) might be analogized as follows: A query that begins with a domestic U.S. phone number is like entering a library and looking to find all of the sources that are cited in Battle Cry of Freedom by James M. McPherson (Oxford University Press 1988). You find that specific book, open it, and there they are. ‘Hop one’ is complete. Then, you want to find all the sources cited within each of those sources (‘hop two’), and so on. At the end of a very long day, you have looked only at books, articles, etc. that were linked to Battle Cry of Freedom.
“Querying a foreign phone number is like entering a library and trying to find every book that cites Battle Cry of Freedom as a source. It might be referenced in a thousand books. It might be in just ten. It could be zero. The only way to know is to check every book. At the end of a very long month, you are left with ‘hop one’ results (those books that cite Battle Cry of Freedom), but to get there, you had to open every book in the library.” [Opinion, page 40, footnote 18]”
It seems to me that Judge Leon has effectively ended any argument about whether any U.S. telephone subscriber’s telephone number, including information related to that telephone number, has been acquired, accessed and analyzed by the Government. The “speculative” defense has, I think, been destroyed.
The Right of Privacy, the Fourth Amendment and Smith v. Maryland
The last twenty-five pages of Judge Leon’s opinion, (pages 43-68), are an essay on the impact of modern technology on the appropriate legal analysis of Fourth Amendment rights. He begins with a discussion of Smith v. Maryland, the Supreme Court case that is relied upon by all defenders of NSA’s metadata program. That case, decided in 1979, involved a robbery victim who, after the robbery, received threatening phone calls she associated with the robbery. When she complained to the police, they arranged with the telephone company to attach a pen register to the telephone line belonging to Smith, a suspect in the robbery. They did so without a warrant or a court order. The pen register disclosed that, during the thirteen days it was attached to Smith’s phone line, a call was made to the victim’s home. That became a key piece of evidence leading to Smith’s conviction.
Judge Leon cites abundant evidence that the technology at issue here is dramatically different from the brief pen register attachment in Smith. Without attempting to summarize all of his reasoning, suffice to say that he argues that applying the Court’s reasoning in Smith to the NSA’s surveillance program is like comparing traffic safety regulations designed for horse and buggy traffic to those appropriate for modern freeway driving.
The standard applied by the five Justices who wrote the opinion in Smith was the one announced in an earlier case, Katz v. U.S., which held that attaching a listening device to a phone booth and recording a conversation by a caller violated the Fourth Amendment. There the Court, following earlier precedent, ruled that the Fourth Amendment protected a right of privacy reasonably assumed to exist by society. The Court ruled that, because Smith, as a telephone subscriber, knew his telephone calls were recorded by the telephone company in order to prepare his bill, he had no reasonable expectation that the telephone numbers he called were kept private.
Judge Leon contends that these decisions are wildly in-apposite to a belief that the average American telephone user assumes that the government is maintaining and has maintained a giant database consisting of every telephone number of every call they make and of every call made to them; that this data is retained, accessed and analyzed by the government for five years .
The Judge cites other Supreme Court decisions which, to me, are more pertinent to the issue. For example, in one decision, the Supreme Court held that the Fourth Amendment was not violated when the police attached a short range tracking device to a suspect’s car and used it to track him on one occasion. The Court held that, when we drive about, we have no expectation that our movements may not be observed by others. In another case, however, the Court held that the Fourth Amendment was violated when the police attached a long range beeper to a suspect’s car and used it to track his movements for a month.
The NSA’s Collection of Metadata is Unreasonable
In the concluding part of his opinion, Judge Leon responds to the Government’s claim that the acquisition and retention of its metadata was and is necessary because seeking judicial approval would take too long. He wrote that NSA cited three instances where they used the metadata in apprehending an alleged terrorist. In all three, the metadata was accessed after the suspected terrorist had been identified using other conventional means. The metadata was used either to find another participant in a plot or to confirm information already known. In none of the examples cited by NSA was speed a factor.
American Civil Liberties Union v. Clapper
In this case Judge Paulley discusses and considers each issue ruled upon by Judge Leon. He agrees that A.C.L.U has standing because of the disclosures made by Snowden. He agrees with Judge Leon that A.C.L.U.’s claims based on the Admiinistrative Procedure Act fail for the same reasons cited by Judge Leon.
He disagrees with Judge Leon’s bases for distinguishing Smith v. Maryland. He contends that, while telephonic usage and technology have dramatically changed, a telephone is still a telephone. For Judge Pauley, when the Supreme Court decided that a pen register could be attached to Mr. Smith’s telephone without a warrant, that settled the issue: One telephone or 300 million telephones, thirteen days or five years, Judge Pauley can’t see any difference.
He discusses the possibility that NSA might utilize a database of 300 million telephone calls over a five-year period to look for some patterns of behavior that might involve more prying into the lives of innocent citizens than was possible when the government attached a pen register to a single telephone line. Here is how he dismisses such fears:
““. . . , without resort to additional techniques, the Government does not know who any of the telephone numbers belong to. In other words, all the Government sees is that telephone number A called telephone number B. It does not know who subscribes to telephone numbers A or B. Further, the Government repudiates any notion that it conducts the type of data mining the ACLU warns about its parade of horribles.” [Opinion, page 41] He buttresses his confidence on this point by citing this reassurance from General Alexander:
“General Alexander’s testimony on this point is crystal clear: ‘]I]n the open press there’s this discussion about pattern analysis on this. That is absolutely incorrect. We are not authorized to go into the data, nor are we data mining, or doing anything with the data other than those queries that we discuss, period. We’re not authorized to do it. We aren’t doing it. There are no automated processes running in the background pulling together data trying to figure our networks. . . . The only time you can do pattern analysis is, once you start the query on that query and where you go forward.’ Alexander Testimony at 66”
This exemplifies Judge Paulley’s entire approach to the case: He accepts without any hint of skepticism every reassuring statement from NSA witnesses. Here is an example that he includes in his opinion. I think this is dishonest because he cites and discuses Judge Leon’s opinion and therefore is bound to know how misleading these numbers are.
“Because each query obtains information for contact numbers up to three hops out from the seed, the total number of responsive records was ‘substantially larger than 300, but. . ..still a very small percentage of the total volume of metadata records.’ [quoting an NSA declaration ] Between May 2006 and May 2009,the NSA provided the FBI and other agencies with 277 reports containing approximately 2,900 telephone numbers. [citation of NSA declaration omitted]” [Opinion, page 12]”
Without the information in Judge Leon’s opinion, we might conclude that we are all exaggerating the importance of this argument. 2,900 telephone numbers doesn’t look like much of a trove of data. It also conceals what NSA actually does.
Judge Paulley discusses the automobile tracker cases cited by Judge Leon. He argues, however, that the decision finding that a Fourth Amendment violation had occurred was based on the fact that the device left on the suspect’s car for a month was placed there in a way that caused the Court to equate it with an actual intrusion into the car. That does not comport with the quotation from the second decision quoted in Judge Leon’s opinion. See Judge Leon’s opinion, pages 46-47.
These two federal district court decisions neatly contrast the nature of the debate in progress in our nation. Like any debate, the statement of the issue is important. I believe a fair version of the issue is:
What is the most serious and fundamental threat we face: Bombs from a foreign terrorist or our government’s effort to protect us?
I contend the answer is “our government’s effort to protect us”. My contention is based on my understanding of history. It seems to me that ceding power to government is always an irreversible transaction. Once acquired, power is never relinquished. I fear this NSA surveillance because it is power given to an agency that operates in secrecy; whose operational purpose, spying, is one that succeeds by lying and deception. Everything about it is anathema to the safeguards of a legal system and a Constitution that has force only if enforceable in court.
Even if we trust the present managers of these powers, allowing the creation of such potentially damaging weapons will serve as a temptation for abuse for countless generations. Already, local police chiefs and county sheriffs are clamoring for access to this gigantic mass of information about every person in this country. Are we so naive as to think that information will not sooner or later be used to punish political enemies or to crush unpopular dissent?
LIke all my fellow Americans, I am waiting with a mixture of hope and apprehension for the decision of President Obama concerning the proper limits of these surveillance programs. I hope his background as a constitutional law professor will give him courage to accept the risk that ,if he reins in NSA and a terrorist bomb explodes during his presidency, he will be blamed.
I will be watching and hoping.
September 27, 2013 § Leave a comment
My Lucy’s Football Complaint
In July and August I spent too much time reading, thinking and writing about my country’s policies and activities that were, to me, depressing and shameful. During the Bush-Chaney-Rumsfeld-Yoo years I was angry but not depressed. I was comforted by the hope that their excessively wanton brutality would produce a commensurate degree of righteous reaction that would propel forward the forces of justice and decency.
When Barack Obama was elected I was thrilled. I thought a man of conscience and intelligence would use the ingenious organizing ability that produced his victory to transform the Democratic Party into a political coalition that could dominate American politics for a generation. He took office when the financial power brokers had been brought down by his predecessor. They were coming to Washington, hat in hand, desperate to avoid an implosion.
I assumed , as a student of history, he would recognize that he was in a position similar to Franklin D. Roosevelt, who became President when the policies of Herbert Hoover and the Republicans had capsized the American economy. FDR used that crisis to change the relationship between capitalism and government and to brand Hoover and the Republicans for decades as the enemies of working class Americans.
Instead, Obama used the power of government to pay off the debts that profligate Wall Street bankers had incurred, restore the auto industry, and leave working class Americans without jobs or forced to accept deep pay cuts and menial work to avoid starvation. Far from identifying and branding those responsible for the economic debacle, he made speeches and spoke at press conferences about “looking forward, not dwelling on the past.”
Obama and his team used government generosity to enable Wall Street bankers to recover quickly from the near bankruptcy of their casino. The bonuses and multimillion dollar salaries have climbed to galactic heights. This was done regardless of how politically unpopular it was. No political price was regarded as too high to accomplish this feat.
That attitude was in sharp contrast to the cautious and timid attitude toward other politically difficult projects: Changing labor laws to enable and encourage the resurrection of the labor movement was not even considered – much too difficult- now is not a good time-etc. etc. etc. . Insisting on solving our health care problem by extending Medicare, one of the most popular government programs in the history of the United States, to all. No, that might be branded as socialism – not practical – would never pass in Congress. Well then, if the insurance industry must be left to make useless profits from providing health care, how about a “public option” to place limits on how egregiously they can sabotage the distribution of health care? “Well, we tried that, but couldn’t get enough votes.”
The one political strategy that was never considered: Propose fair and just policies. If they are not adopted, continue to insist on them. Attack those who oppose them. Praise and reward those who support them. Never stop organizing and attacking. Relentlessly target the leaders of the opposition. Name them. Take pains to distinguish them from those who are merely stupid, ambitious or both; they may choose to abandon their opposition, especially if it appears likely to lose.
President Obama is a reasonable person. I think his fatal flaw is his belief that proposing reasonable solutions to problems will win arguments. As a trial lawyer, I shared that belief and, more often than not, I found that juries were more likely to favor the litigant who presented a reasonable argument rather than one who relied on bombast and assaults on the credibility and good faith of the opponent. It didn’t always work, but my average was respectable. I really had no choice. Like Obama, I was never able to sell myself as a shouter, a bully or a fist-shaker.
Political contests, at least those in which I have been actively involved and the ones that have been waged in Washington for the past five years, are wars, not trials. There are few rules and the rules that apply are routinely ignored. The folk description of them is that they are fought by people “down for money, marbles and chalk.” Obama’s obsession about avoiding the stereotype of the “angry black man”, I think, led him to begin negotiations with ruthless and unprincipled demagogues with compromises that, if they were ever appropriate, should have followed, not preceded, a hard fight. I think he brought a knife to a gun fight.
His soaring rhetorical claim that we live, not in blue states and red states, but in the UNITED STATES, was a noble effort to moderate political conflicts. He should have recognized, however, that it did not describe the kind of political viciousness that characterized the political arena of Washington D.C. in 2008 – 2013,
At my age, I am not naive about politicians. No elected official has proved satisfactory to me. Ralph Yarborough came close and my admiration for him more than compensated for every instance when he did such things as sponsoring James Latane “Soapy” Noel, his college room mate, for appointment to a federal judgeship in Houston, who turned out to be an abysmal failure when Houston’s public school integration depended on his judgment. Lyndon Johnson fought every effort to create a viable and dominant liberal Democratic Party in Texas. Bill Clinton’s “triangulation” cleverness spawned the Democratic leadership Council and NAFTA without any protection for the rights of workers, not to mention his enthusiastic embrace of of Wall Street deregulation. My experience with these men taught me, once again, that Democratic Party politicians can do just as much damage as Republican politicians. Even Hubert Humphrey, after a lifetime of dedication to liberal ideals, ran for president wearing LBJ’s Vietnam warbonnet after claiming the nomination in Chicago during a police riot.
So, I have callouses on my backside from running full-tilt toward Lucy’s football during political football games. That’s why Obama was so depressing. I thought we had, at last, elected a steadfast Lucy. Like they say, “There’s no fool like an old fool” Or, as I’ve often said, “like an Old Fart Lawyer.”
The Affordable Care Act
I am hopeful that the ACA will not be a “train wreck”, as predicted by its critics. I am sure the GOP will do everything it can to sabotage it and call attention to every negative aspect of its implementation. The fact that thousands of Americans die each year due to lack of health care makes the stakes too high for betting against it, a mere detail that will have no influence on those who want it to fail. The only human life that concerns them is life in the womb.
Having said that, I believe the ACA is a solution that would have made sense in 1942, but is inappropriate in 2013. When millions of men were withdrawn from the workforce to fight WWII, America was in desperate need of manpower to produce the goods and services vital to the war effort as well as the sustenance of the civilian population. Competition for workers was fierce. Wage levels were frozen. So, employers, primarily industrial employers, began offering health insurance as an inducement to attract and retain workers.
During the New Deal years, as a result of the Wagner Act, many industrial workers were represented by unions. So, a pattern of negotiated arrangements for job benefits was developed. Neither employers nor unions wanted to create machinery for handling and adjusting claims, so a large health insurance industry was created to handle this new demand for health insurance.
If the ACA had been adopted then, it would have been a sensible legislative regulation of these new arrangements. Dramatic changes have occurred since then. Many of those industrial giants no longer exist. The vitality of unions has disappeared in the face of changes in federal law and a failure of the Democratic Party to insist on protection of the rights of workers to organize for collective bargaining. What we now have is a giant insurance industry, regulated lightly by state governments, and employers free to make choices regrading health insurance for their employees, usually free from any significant bargaining through unions. The Employment Retirement Income Security Act, usually designated ERISA, does not require employers to make health insurance available to its employees, It does include some requirements if the employer chooses to do so. It does not, however, prescribe minimum levels of benefits which must be offered.
Another dramatic change occurred when Medicare was created to guarantee health care for those over the age of 65. That law has become a model of government service and is wildly popular. It proved that government can establish and implement a successful program providing health care to a large population, even a population of elderly people whose health care needs are well above those of the general population. Choosing to leave health care in the hands of insurance companies instead of extending an already established model government program was dumb.
Having stated my now-irrelevant bitch, I acknowledge at least two positive developments resulting from the flawed process that produced the ACA. First, the Republican Party has obsessively and enthusiastically branded itself as opposed to the law. That means that, when the law becomes effective, and millions of Americans discover that they have access to health insurance at prices they can afford, they will, perhaps, begin to question their loyalty to Republican politicians who tried to prevent it. I am not sure about this. American voters are notoriously willing to vote for politicians whose policies are harmful to them. This masochistic stupidity is an endemic mental disability linked to American politics.
The second positive result is that Barack Obama has, finally, responded with some degree of anger and moral outrage to the attacks on the ACA . This morning, September 26, 2013, less than a week before the ACA becomes an active program affecting every American, after years of hysterical assaults by the GOP, thousands of hours of lies about the law, and a twenty-hour harangue by a Jackass Senator from (of course) Texas, our President, in a speech to a community college crowd in Maryland, displayed a little bit of outrage and struck back. He didn’t name anybody. He wouldn’t want to spoil the collegiality he enjoys as he works with his “friends across the aisle”. But he did mention that the Republicans have been lying about the ACA. That is a step forward.
Here is my hope: Americans have now been promised health care. The promise has been made by their government. When the insurance industry allows its greed to interfere with providing that health care, the people will demand action from the government. At some point it will become so obvious that even American voters will realize that health care for which government is responsible should be managed and administered by government. The ACA will transition to Medicare. As usual the question is: How much pain will be necessary to energize the electorate to demand it?
A Mind Meld and a Grok
As stated, after reading about the NSA trashing of the 4th Amendment; the secret FISA court and its secret jurisprudence, I was angry and depressed. The consensus seems to have been accepted that, given our modern technology, we are doomed to submit to government’s limitless access to our private lives, all in the name of protecting us from a constantly expanding array of terrorists in a state of boundless and endless martial law.
I followed that investigation by reading Jeremy Scahill’s book describing the government’s “global war on terror” in which the bombing of innocent civilians is accepted as collateral damage. Bypassing the Bill of Rights and assassinating American citizens without warrant, indictment or trial is explained as an acceptable tactic in the GWOT. “Signature strikes”, firing missiles and dropping bombs on people based on the “life pattern” of some in their midst is said to be justified on the basis of the probability that terrorists will be killed.
These revelations about the policies of my President and my country depressed me. After a few days, I tired of thinking about them. One of my favorite bumper stickers states, “Reality is for People Who Can’t Handle Drugs and Alcohol”. I am one of those people, so a bottle of Jack Daniels was not an option.
I remembered that, for most of my life, beginning in Elementary School, I was almost always in the middle of reading a novel. That changed a few years ago and I began reading non-fiction. I decided I needed a break from all this serious stuff. I needed to escape.
Crime and Punishment
In 1997, my mother-in-law, whom I loved and admired, gave me a handsomely bound copy of “Crime and Punishment”, Fyodor Dostoevsky”s psychological novel. It had lain unread on a bookshelf for sixteen years. I chose it to begin my recovery. Dostoevsky was a remarkable person. He was a dissident in the 1850’s. He was imprisoned and sentenced to death. He and two other prisoners were taken to the prison yard, tied to stakes, a firing squad was assembled and the first two of three orders were given to carry out the sentence, when a messenger from the Tsar arrived breathlessly to announce that their death sentences had been commuted to terms of imprisonment in Siberia.
[Spoiler Alert. I assume that most of you have read this classic, so this is probably unnecessary. But, the following paragraphs will disclose the ending of the novel.]
Dostoevsky became a popular writer after surviving that term of imprisonment. “Crime and Punishment” was published in 1861, when our civil war was beginning. The main character, Rodion Roskolnikov, a young penniless lapsed student, uses an axe to kill an old lady who operates an amateur pawn business, as well as her mentally disabled sister who unexpectedly witnesses the murder. The novel describes Roskolnikov’s struggle with his conscience and the fear that ultimately drives him to confess to his crime and accept imprisonment in Siberia. The novel is actually two narratives. One is in Roskolnikov’s head and the other one involves his family, his friends and a number of protagonists in the government’s criminal justice establishment.
The psychology is presented in terms of a philosophical conflict. Roskolnikov initially tries to convince himself that he is a member of an intellectually superior group of people, whose talents entitle them to ignore ordinary rules of conduct applicable to their inferiors. He tries to analyze his crime as the just sacrifice of a couple of worthless women in order to enable him, a person of significant potential, to survive. This hubris is a barrier that prevents him from having an intimate relationship with either his male friends or a young woman, Sonya, who falls in love with him.
The novel, set in St. Petersburg, is an engaging description of a part of Russian society. There are lengthy passages describing Roskolnikov’s thinking, similar to “stream of consciousness” narration, except that it is written in the third person rather than as a transcript of the thoughts going on in Roskolnikov’s head.
Reading the book had its desired effect. For several hours I was in Russia, feeling the cold, tense as the main character edged closer and closer to a resolution of his inner conflict, while a parallel effort was going on as a smart law enforcement official came closer and closer to trapping him.
After his confession and banishment to Siberia, Sonya moves there to be with Roskolnikov. Finally, after several years, he accepts her love, casts aside the heartless intellectualism that kept him aloof and alone, accepts responsibility for the crime he committed and becomes an adult human being.
Lie Down in Darkness
Over fifty years ago, Larry Goodwyn gave me a priceless gift. He told me about William Styron. I read his first novel, Lie Down in Darkness when I was thirty-one or two. As part of my recovery from too much reality, I re-read it. It still blew me away. The astonishing thing about it is that Styron wrote the book in two years at age twenty-two to twenty-three. How he managed to acquire, at that young age, the knowledge and insight to describe, in words carefully crafted and filled with imagery, the musings, dreams and fears of a fifty-year-old woman and her twenty-year-old daughter, is beyond my understanding. I don’t pretend to have that ability, but Styron’s descriptions have the feel of absolute authenticity. As I re-read them, at age 82, having had lots more experience with lots more people of different ages, than Styron had time to have had when he wrote this novel, his descriptions were believable to me.
His writing was compared to Faulkner’s. I don’t know about that. To me, the tenderness and understanding of human fears and weaknesses he describes made me think of Scott Fitzgerald’s Tender is the Night . After grabbing me and telling me a long story about death and loss and love and betrayal, Styron ends his novel with a penultimate section, forty-nine pages without a paragraph break, in which he transcribes the thoughts in young Peyton’s head. Unlike Dostoevsky, Styron does not stand aside and write about what Peyton is thinking. Peyton herself lets you into her head and allows you to think with her, feel with her, remember with her.
Grok and Mind Meld
A.E. Heinlen invented the term grok in his novel, Stranger in a Strange Land, a science fiction fantasy based on a Martian who visits Earth. The visitor has the ability to relate to another person by communicating between his own and his or her minds. The process is called groking. It obviously enables a degree of intimacy otherwise impossible to achieve. As I read Crime and Punishment, I realized that Dostoevsky was enabling me to relate to Roskolnikov’s mind,, rather than merely with his actions and statements. It reminded me of Heinlen’s groking.
Styron, on the other hand, took me a step closer than Heinlen. Throughout his novel, and especially in the 49-page internal monologue, he enabled Peyton and I to communicate through a mind meld, a Vulcan ability introduced to Earthlings by Spock, an officer in the Starship Enterprise, commanded by Captain Kirk.
I don’t intend to escape from reality permanently but I have decided to temper my dabbling in reality by vicariously experiencing other people’s lives through the pages of well-written, or just moderately well-written (I’m not very discriminating when it comes to fiction) novels.
May 20, 2013 § Leave a comment
In the following essay I will argue that President Obama’s claim of authority to order assassinations of American citizens and others without complying with the requirements of due process and without disclosing the factual basis for his order violates the Fifth Amendment to the Constitution.
The etymology of the phrase “Lynch Law” is murky. It may have been named after James Lynch Fitzstephen of Galway, Ireland who, while mayor, hung his son from the balcony of his home in 1493, after convicting him of murdering a Spanish visitor. It has also been attributed to Charles Lynch, a Virginia planter and American revolutionary, who presided over a county court. Judge Lynch, without formal jurisdiction, imprisoned British loyalists for up to a year during the Revolutionary War. The Continental Congress retroactively affirmed his action. William Lynch, also of Virginia, claimed the phrase originated in a 1780 privately negotiated compact between him and his neighbors in Pennsylvania County.
Lynch law has a long and shameful history in America. A study at Tuskegee Institute listed 4,743 lynchings between 1882 and 1968; 3,446 blacks, 1,297 whites.
Based on this history, it is fair to characterize lynch law as lawless imprisonment, punishment or execution.
A Brief Historical Comment
The history of warfare is a record of expanding the reach and capacity of men for death, mayhem and destruction. The process began when the first man picked up a stone, a club or a stick to gain advantage over an enemy. The sling extended the range of the stone. The spear in the hands of a strong armed warrior extended the range of the stick. The bow and the catapult added range to both the spear and the stone. Roman soldiers armed with short swords, standing shoulder to shoulder in squares, powered an empire. Genghis Khan and his fearsome mounted army swept away everything in his path from Mongolia to Western Europe with highly trained horsemen armed with bows and arrows.
Explosive compounds, rockets and airplanes enabled transcontinental range for destructive weaponry. In the past sixty days, we learned that American stealth bombers based in Missouri flew nonstop 6,500 miles to engage in war games on the Korean peninsula and returned home. Nuclear technology and chemical warfare have increased the destructive capability of men to a potential for rendering our planet uninhabitable.
War and The Law
In a fitful effort to control these forces of chaos and destruction, societies have developed various systems of laws and cultural norms designed to impose some limits on war. One of the most basic legal principles established by laws related to war is that assaults, homicides and property destruction are not criminal if committed by soldiers engaged in wars. War affords its participants a legal justification for acts that, if committed by private citizens, would justify prosecution and punishment. Western democratic societies have tried, with very limited success, to establish limits on this defense to prosecution. An effort has been made to define “crimes against humanity” and to prescribe punishment for such “crimes”, regardless of whether committed during a war.
These efforts have resulted in somewhat skewed results. The victors in WWII prosecuted, imprisoned and executed German and Japanese “war criminals” for wanton destruction and killing of civilians, conveniently ignoring the bombing of Dresden and the nuclear and fire bombing of Japan. This said, however, it is true that, until the past decade or so, the distinction between crime and war was generally recognized and observed.
Even revolutionary wars, pitting neighbor against neighbor and countryman against countryman, were treated as wars and the participants were not viewed as criminals. Confederate soldiers in the Civil War were not prosecuted for treason, even though Union rhetoric accused them of being traitors. When the war ended, Confederate prisoners were released to return to their homes. A vengeful Congress stripped them of their rights as U.S citizens, but even those retaliatory measures were later modified as part of a political deal.
9-11, The Failure of Checks and Balances and the Patriot Act
On September 11, 2001, airplanes piloted by agents of Al Qaeda crashed into two office buildings in New York City and the Pentagon in Washington D.C.. The buildings in New York were destroyed and the Pentagon sustained significant damage. Seventeen days later, on September 18, 2001, with one dissenting vote in the House and a unanimous vote in the Senate, the U.S. Congress adopted a joint resolution that stated, in pertinent part:
“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
This joint resolution, entitled “Authorization for Use of Military Force”, often abbreviated as AUMF, has been used by the Bush and Obama administrations to authorize the President to by-pass the Constitutional provision that reserves to Congress the power to declare war. [Article I, Section 8]. In fact the last time Congress declared war was in December, 1941.
The United States has used military force against against North Korea, Vietnam, Cambodia, Grenada, Afghanistan, Iraq, Pakistan and Libya, all without any declaration of war by the Congress. Harry Truman named the Korean War a “police action” to explain why he sought no Congressional declaration of war. LBJ claimed that the Vietnam war was waged in response to an attack on an U.S. Navy vessel in the Gulf of Tonkin. A Joint Resolution of Congress authorized the president to use military force to help countries who were parties to the South East Asia Treaty Organization secure “their freedom”. A later investigation concluded that most of the claims that the Navy vessel was attacked by North Vietnam ships were false. Nevertheless, 58,000 dead American soldiers and countless Vietnamese and Cambodians resulted from this undeclared war based on those lies foisted on Congress.
The Bush and Obama administrations have ignored the language of the Joint Resolution that limits its targets to “. . . nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons,. . . .” Al Qaeda has been interpreted to mean any person or group that seems to have some wish or intent to do harm to Americans. The only requirement seems to be that the target must be somehow “associated with” some group, regardless of how amorphous or loosely organized, that can be linked to the phrase “Al Qaeda”.
At a Senate hearing on May 18, 2013, representatives of the Department of Defense testified before a committee of the Senate. In response to friendly questioning from Senator Graham they claimed the right to wage war anywhere they found anyone threatening any “terrorist” act against the United States; that the “battlefield” encompassed an area they described as “from Yemen to Boston”. This testimony astonished even Senator Graham’s political clone, John McCain. To appreciate the scope of our present lawless and unlimited military machine, see the excerpts published by the Huffington Post.
To summarize: Both Bush and Obama have used the above-cited 2001 Joint Resolution as a basis for their authority to make war on anyone, anywhere, any time if they can relate some activity, threatened or likely activity of the target to some “future acts of international terrorism against the United States”. Some times that relationship seems, at least to me, so tenuous as to be credible only to those who, like the audience watching a play, are engaged in a “willing suspension of disbelief”. “Six degrees of Separation from Kevan Bacon”, an interesting parlor game, seems to have become a template for the “war on terror”.
The most dangerous power of government is military power. The United States has the most powerful military force in the history of the world. The only protection from misuse of that power is the Constitution, a worthless document unless its terms are enforced, either politically through elected officials or legally in our courts. During the past seven decades we have passively watched as that military force has become stronger and the restraints that render it safe have all but vanished.
This has occurred for three reasons: First, American citizens have been terrorized, not by foreign terrorists but by home-grown political demagogues who have used appeals to patriotism and exaggerated fear to convince Americans that constitutional protections against lawless government are mere hindrances that interfere with efforts to protect them against dreadful attacks. Second: Elected officials charged with enforcing those constitutional protections have defaulted because of political cowardice or corrupt alliances with corporate business forces that profit from military armament. Third: Our courts have been unwilling to halt the erosion of constitutional protection because they perceived the issue to be political, rather than legal and, in cases involving individual rights, have been too willing to accept the so-called “national security” defense that allows government to cloak in secrecy the factual bases, or lack thereof, for its actions.
The “War on Terror”
I have expressed my concern about the undeclared wars that have cost trillions of dollars, hundreds of thousands of lives and devastated several countries. I am convinced that the costs of those wars, both in blood and treasure, have greatly exceeded any benefit that resulted from them. I am convinced that none of them, with the possible exceptions of the Korean war and the first Gulf War, were necessary. So far as I can tell, neither Afghanistan, Pakistan, Iraq nor South East Asia are better off today because America waged war against them.
I am grateful, of course, that many of the leaders of Al Qaeda, a vicious and dangerous organization, have been captured or killed. I do not believe, however, that tracking them down and dealing with them required the trashing of our Constitution and the various wars that have been waged in response to the attack on September 11, 2001. Terrorist attacks are crimes committed by criminals. They are not acts of war and the criminals are not soldiers.
We have criminal laws and orderly constitutional procedures for dealing with criminals, both those found in America and those found elsewhere in the world. When the September 11 attacks occurred, we should have organized an international team of law enforcement officials in a joint effort to locate and apprehend those responsible. When they were caught, we should have extradited them to America, jailed them, tried them and imprisoned or executed them without violating our laws and without engaging costly and unnecessary wars.
The vast Homeland Security bureaucracy employing 180,000 people, created in the panic following the 9-11 attacks, had little to do with the successful effort to deal with Al Qaeda. Neither the Iraq war nor the Afghanistan war has resulted in any appreciable damage to Al Qaeda that could not have been accomplished with a more targeted law enforcement effort. Individual leaders of Al Qaeda have been captured or killed by small teams or specific attacks unrelated to those wars. Misnaming our reaction to the September 11 attack as a “war on terror” has done little to injure our enemies. It has done significant damage to our system of laws.
The extra-judicial invasion of privacy spawned by the Patriot Act, claimed to be required because we are in a “state of war”, has enabled government access, without a warrant, notice or hearing, to our emails and our telephone calls. Our activities are recorded by ubiquitous cameras mounted on drone aircraft as well as thousands of other stationary locations. The information about us thus secretly acquired is then secretly analyzed by nameless bureaucrats whose motives and methods are secret, hidden from judicial oversight and public disclosure by claims of “national security”.
The Advent of the Drone
The development of drone aircraft capable of carrying explosive weapons and controlled from remote locations have, in my opinion, significantly increased the danger to all of us resulting from the above described expansion of presidential discretion to kill people located anywhere in the world because they are claimed to be, or likely to be or become “terrorists”. This new weapon sheds the disguise of a “war on terror”. It is an individualized personal weapon to be used against specific named persons. In other words, a drone does exactly what a law enforcement officer does: Seek and kill people suspected of having committed a crime. As presently used, however, drone killing is done with no pretense of due process.
A thief who shoplifts a candy bar can be arrested only based on probable cause, is entitled to Miranda warnings, a written statement of charges against him or her, a lawyer and a trial before an impartial tribunal. If, however, he or she is in Yemen and can be somehow be connected to some group calling itself “Al Qaeda”, he or she can be added to a hit list by a group meeting in the White House and blown up in a drone strike based on secret evidence never disclosed.
If this does not concern you, because you are confident that Barack Obama and his administration would not misuse this authority, I have just two words for you: Ted Cruz. He will probably run for President in 2016. How much are you willing to wager that he won’t be elected? Your life and your liberty? Did you think American voters would grant George W. Bush a second term in 2004, given the fact that his disastrous first term had embroiled us in a senseless war in Iraq, converted a budget surplus to a giant debt, and allowed Wall Street bankers to wreck our economy? No? Neither did I. But they did, by a larger margin than his first election, the one they had to steal.
The Supreme Court and the “War on Terror”
In Ex parte Merryman Chief Justice Roger Taney ruled that the President, even if the country was at war, could not suspend the writ of habeas corpus without Congressional authority. The case is an interesting one. In 1861, the Civil War was beginning. President Lincoln, desperate lest Rebel sympathizers in Maryland cut off Washington from the rest of the union , called up the loyalist Maryland militia to defend against the Rebel forces. He declared martial law in Maryland and told General Winfield Scott that, if he found it necessary, he could suspend the right to habeas corpus and summarily detain anyone who acted against union forces.
John Merryman was a sympathizer with the southern cause and a lieutenant in the Maryland militia. He committed acts of destruction and sabotage and was arrested, charged with treason by a Brigadier General in the Union Army and jailed at Fort McHenry near Baltimore. He filed an application for a writ of habeas corpus in the Federal Court presided over by Chief Justice Taney. Taney was a Democrat and hated Abraham Lincoln. He granted the writ and ordered Merryman brought to his court. When the writ was served, the General in charge of Fort McHenry responded with a letter declining to recognize Taney’s writ. Taney issued a writ of attachment ordering a federal marshal to arrest the general and bring him to court. The marshal was denied entry into the Fort. Taney responded with a lengthy opinion castigating Lincoln for arrogantly presuming to possess authority capable of suspending rights protected by the Constitution. Taney quoted from the Declaration of Independence. One of the justifications offered for revolting against King George was that “He has affected to render the Military independent of and superior to the Civil power.”
President Lincoln ignored Taney’s decision as well as several other federal court decisions rendered thereafter agreeing with Taney. Finally, in February, 1862, Lincoln rendered the issue moot by releasing on parole all political prisoners. However, a month later, after Congress refused to grant him authority to suspend habeas corpus, he defiantly suspended the writ throughout the country. The matter was finally settled in March, 1863, when Congress enacted the “Habeas Corpus Suspension Act”.
[An aside: After reading this account of Lincoln’s disdain for the Constitution, I was reminded that Obama admires and has carefully studied Lincoln. I assumed he admired Lincoln’s noble assault on slavery and his wise moderation toward conflicting views. After reading this case, I wonder if my political support of Obama has blinded me to other aspects of his philosophy and admiration of Lincoln which, to me, are not so attractive. ??]
The next case pertinent to the present inquiry was Ex parte Milligan, decided in 1866. Lambdin P. Milligan and several other Southern sympathizers planned to free Rebel prisoners or war held in Yankee prisons, organize them into a military force and take over the governments of Indiana, Michigan and Ohio. He and several of his cohorts were arrested, tried before Military Commissions and sentenced to death for treason. The Civil War ended before the date of Milligan’s executiion. He filed an application for a writ of habeas corpus and the Supreme Court granted his application.
The Court ruled that martial law and trials by military commissions were proper in three situations: First: Military courts or commissions could try members of the armed forces. Second: During a war, a military force occupying enemy territory could try civilians in military courts or commissions during the continuation of the war and until some new government was established. Third: In time of some catastrophe or chaotic event when regular government courts were not available, martial law could be declared and the writ of habeas corpus temporarily suspended.
The Court ruled that Indiana, where Milligan was arrested, was not occupied territory and that trial before a military commission was not proper because the courts were available. Therefore, Milligan’s application was granted, the Court ruled that the trial before a Military Commission was unconstitutional and he was freed.
In Johnson v. Eisentrager, decided in 1945, the Supreme Court held that German soldiers arrested, tried and convicted in China by a military commission of having fought with the Japanese army against United States forces, and later detained in a prison in Germany could not invoke the jurisdiction of an American federal court to hear an application for habeas corpus. The applicants were not American citizens and, at no time had been on any American territory. They were convicted of committing acts of war against the United States after the war against Germany was concluded. Justice Jackson held that persons who were engaged in acts of war against the United States in a foreign land, who were neither American citizens nor aliens located in an American territory, had no right to assert rights protected by the U.S. Constitution.
Ex parte Quirin is the Supreme Court case relied on by Bush and Obama for their authority to deprive “enemy combatants” of any semblance of due process, imprison them indefinitely without any formal charges against them, and to deny or severely limit their access to counsel or to any hearing before an impartial tribunal.
That case involved German saboteurs. Four debarked from a submarine in 1942 at Long Island, New York. The others landed on the east coast of Florida. They wore incomplete German uniforms but changed to civilian clothes after landing. Their mission was to destroy various strategic targets in the United States.
One of the saboteurs, Hans Haupt, was an Ameerican citizen. The other seven were German citizens. They were tried before a military commission, established pursuant to an executive order from FDR and sentenced to death. They were represented by counsel. They filed an application for habeas corpus, challenging the legality of their convictions. The Supreme Court denied their application for a writ of habeas corpus. Six of the applicants were executed. The other two were sentenced to prison terms.
The Court did not deliver an opinion until several months after the executions. Justice Stone delivered a per curiam opinion for a unanimous Supreme Court denying their claims. He based his decision on the fact that war had been declared on Germany; that they were actively engaged in making war on the United States; that they were not soldiers and, therefore, not entitled to treatment as prisoners of war.
The opinion was based on draft opinion written by Justice Jackson. There was unanimous agreement that the applicants were not entitled to a jury trial and that they could be tried by a military commission. The justices were divided on the extent to which Congress could circumscribe the discretion of the President with respect to the trial of the saboteurs. Because the Court concluded that the detention of the Germans was legal and that their trial by a military commission was proper, they found it unnecessary to rule on the procedure followed by the commission or the extent of the President’s authority to order such trials.
Louis Fisher, an expert on the law of war and, especially on the use of military commissions, has written extensively and critically on the procedure followed by FDR concerning these German saboteurs. [See Louis Fisher, “Military Tribunals: A Sorry History”, e.g. . This essay is available online.]
Having read this decision as well as some of the commentary concerning it, I do not think it is a Mother Hubbard clause added to the Constitution granting discretionary authority to the President to ignore the Congress and the Constitution in all situations involving terrorist threats against the United States. It is disturbing to me that our former constitutional law professor President disagrees.
Another Supreme Court case pertinent to some of the issues raised here is U.S. v. Verdugo-Urquidez (1990). The Defendant, a Mexican citizen residing in Mexico, was suspected of smuggling dope into the United States. With the cooperation of Mexican authorities, U.S. law enforcement officials searched his home in Mexico, found evidence of his crimes, arrested him and extradited him for trial in the U.S., where he was convicted. In this appeal, he argued that the search in Mexico violated the 4th Amendment’s protection against “unreasonable searches and seizures”. The Court disagreed, holding that an alien living in a foreign country was not protected by the amendment because it began with the statement that “The right of the people to be secure . . . shall not be violated. . . .” The Court stated that “the people” refers to residents of the United States, not residents of foreign countries.
The Court, however, cited the following distinction: “That text, [the Fourth Amendment] by contrast with the Fifth and Sixth Amendments, extends its reach only to ‘the people.'” (emphasis added) They continued, “Before analyzing the scope of the Fourth Amendment, we think it significant to note that it operates in a different manner than the Fifth Amendment, which is not at issue in this case. “The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants” (emphasis added). ”
In other words, the Court made clear the fact that, if the defendant had been deprived of his Fifth and Sixth Amendment rights, even if the deprivation occurred in Mexico and even though he was a Mexican citizen, that circumstance, if material to his case, might have vitiated his conviction. Because he relied only on a 4th Amendment violation, his conviction was affirmed.
In 2004, the Supreme Court decided Hamdi v. Rumsfeld. Yaser Esam Hamdi was born in Louisiana in 1980. As a child, he moved to Saudi Arabia with his family. In the Summer of 2001, twenty-year-old Hamdi went to Afghanistan to work as a relief worker. He was taken into custody by the Afghan Northern Alliance during the American invasion of Afghanistan. They turned him over to the U.S. Military. He was interrogated and then transferred to Guantanamo. When the authorities there discovered that he was an American citizen, he was transferred to a Navy brig in South Carolina.
His father, as next friend, filed an application for habeas corpus in a federal court. The federal judge conducted a hearing and, after listening to the government’s case, concluded there was no persuasive evidence that Hamdi was an “enemy combatant”. The government appealed and the 4th Circuit reversed, ruling that the court had no jurisdiction to challenge the discretion of the President concerning the treatment of a person accused of having participated in hostile activity during a military invasion. The case was remanded to the district court, which again ruled in Hamdi’s favor. The 4th Circuit again reversed and Hamdi appealed to the Supreme Court.
The Supreme Court took the case and, in 2004, ruled that the government had no right to detain an American citizen without complying with the requirements of due process. A four-member plurality of the Court ruled that “due process” in view of the government’s claim that Hamdi had engaged in active hostilities in a combat zone during a military invasion, did not mean that Hamdi had the rights of a defendant in a peacetime criminal proceeding. They did, however, firmly reject the Bush administration’s claim that federal courts had no jurisdiction to evaluate Hamdi’s treatment. After describing the manner and timing of Hamdi’s arrest and detention, the Court stated: “[W]e necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. ‘Youngstown Sheet & Tube,’ 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. […] Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. […] it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.” (emphasis added)
The Court also limited the scope of the “enemy combatant” classification. Here is their language: “There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use. […] A citizen, no less than an alien, can be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States,’ […]; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict [as an alien].[…] Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of ‘necessary and appropriate force’, Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here. […] Under the definition of enemy combatant that we accept today as falling within the scope of Congress’ authorization, Hamdi would need to be ‘part of or supporting forces hostile to the United States or coalition partners’ and ‘engaged in an armed conflict against the United States’ to justify his detention in the United States for the duration of the relevant conflict.”(emphasis added)
To me, this means that when the Afghan war concludes, those alleged to have been “enemy combatants” in that war, must be released. The Court clearly was not willing to agree to an endless “war on terror” to extend the detention powers of the government.
Following this decision, the government made a kind of modified “Br’er Rabbit” deal with Hamdi. They agreed to drop all charges if he would renounce his American citizenship and agree to be deported to Saudi Arabia, where his family lives. He agreed not to travel back to the U.S. or to several other places in the Middle East without approval of the Saudi government. Apparently, they knew full well that they could not prove their accusations against the young man. And, oh yes, he also had to agree not to sue them for having abused and imprisoned him for several years. As Chris Dixie, my law partner, used to say, “These people have no class.”
In Rasul v. Bush (2004), the Supreme Court ruled that citizens of Great Britain and Australia, arrested in Afghanistan and Pakistan during the Afghan war, accused of actively engaged in hostilities against U.S. forces, had due process rights to challenge their detention at Guantanamo. The Court ruled that their citizenship was not determinative of their rights to enforce constitutional limits applicable to the government of the United States; that they could go to federal court to enforce those limits by filing an application for habeas corpus.
After these defeats, Bush and his supporters in Congress crafted a set of rules for military tribunals. That effort tried to render useless the rights of prisoners affirmed by the Supreme Court in Hamdi and Rasul. The Congress also purported to strip the federal courts of jurisdiction to consider challenges to the legality of these measures.
In Hamden v. Rumsfeld (2008), the Supreme Court ruled that those efforts were unconstitutional. The Court ruled that any military tribunal scheme had to comply with the Geneva Convention as incorporated into the Uniform Code of Military Justice. They also disallowed the effort of Congress to deprive them of jurisdiction to enforce the Constitution.
One of the interesting sidelights of the Hamden case was an amicus brief filed by Senators Lindsey Graham and John Kyl. In their brief, the Senators presented an “extensive colloquy” purporting to show that the Congress was aware, when they enacted the “Detainee Treatment Act of 2004”, that it would strip federal courts of jurisdiction to hear challenges to the legality of the Act. The “extensive colloquy” was added to the record after the debate, a detail not mentioned in the Senators’ brief. Again, “no class”.
These cases establish, for me, three propositions: First, the protection of “persons” in the Fifth and Sixth Amendments applies to citizens and non-citizens if their life, liberty or property is being threatened by the United States government. Second: Even if the government accuses a person of having engaged in active hostile acts in a war zone, if the accused person is in a territory subject to the jurisdiction of the United States courts, the accused is entitled to challenge his detention and treatment by filing an application for habeas corpus in one of those courts. Third, neither the Congress nor the President has the right to strip federal courts of jurisdiction to enforce these rights.
The assassination of Anwar Al-Awlaki convinced me that the hazy “Al Qaeda” label, the willfully misunderstood language of the AUMF and the flexible designation of “enemy combatant”, combined with drone technology has finally confronted us with a President and a military/intelligence establishment that threaten our lives and liberty in far more serious ways than any Muslim fanatic is likely to do.
Anwar Al-Awlaki was born in New Mexico. In late September, 2011, drone aircraft controlled from a Middle-East CIA location, fired missiles at a car traveling across a dessert in Yemen. Al-Awlaki and Samir Kahn, both American citizens, were killed. Kahn was the editor of a violently anti-American internet publication, Inspire. Al-Awlaki was a fiery Muslim Imam who used YouTube and emails to preach violently anti-American diatribes, including statements that praised the killing of soldiers and others at Ft. Hood by Nidal Malik Hasan, an Army psychiatrist on November 5, 2009, the acts of a martyr.
The American press has highlighted the fact that, during the months before the Ft. Hood attack, Hasan and Al-Awlaki had exchanged several emails. The emails were initiated by Hasan, in apparent response to Al-Awlaki’s YouTube postings. There is no evidence that Al-Awlaki urged Hasan to kill anyone or that Al-Awlaki helped Hasan plan the attack. The Department of Defense has not charged Hasan as an “enemy combatant” or claimed that he is being held as a prisoner of war. He has been charged with murder and is being prosecuted under the Uniform Code of Military Justice.
On September 11, 2001, Anwar Al-Awlaki was a Muslim preacher at a large mosque in Falls Church, Virginia. He denounced the attack as an outrage, was interviewed on TV, profiled in a piece in the Washington Post and was featured in NPR episodes concerning the 9-11 attacks. When the FBI learned that one or more of the 9-11 attackers had attended a mosque in Los Angeles when Al-Awlaki had been the imam there, he was interviewed and cleared of any wrongdoing related to that circumstance.
The story of how this American Muslim preacher became a target for assassination by an American President is a long and interesting one. I have read two versions of this story. One, written by New York Times reporters, repeats the government’s version. The other, written and narrated by Jeremy Scahill, a writer for The Nation and a longtime correspondent for Democracy Now, the liberal media program presided over by Amy Goodman, is based on information gleaned from non-governmental sources as well as from current and former members of the American intelligence community. The Times’ version generally justifies, with some reservations, the government’s case against Al-Awlaki. When it mentions the gaps in the government’s factual case, it gives the government the benefit of the doubt. Scahill is less forgiving. He also adds many details left out of the Times’ version.
Here are links to a long Democracy Now interview of Jeremy Scahill by Amy Goodman. It is in two parts.
Here is a link to a video of Jeremy Scahill stating his criticism of the government’s handling of the Anwar Al-Awlaki killing. Scahill video
These are long stories. I know that, with busy lives, you may not have time to have read this far in this too-long essay. I understand this. I have indulged myself by writing this and doing this research because I believe that America is, as the neo-cons keep insisting, an exceptional place, but not for the reasons the neo-cons claim. I don’t think our exceptionalism is based on our ability to bully people and nations. We are an exceptional nation because we have declared ourselves willing to accept the substantial risks of being free.
We do not value our safety more than our freedom. We respect our government because it is our creation, based on our authority and subject to a written enforceable contract we drafted and adopted. We did not copy it from a form book. We haggled, raged and argued about it and we refused to agree to it until the first ten amendments were added, but finally, recognizing that it was imperfect and the result of many compromises, we ratified it. Our Constitution and the government it established are unique accomplishments, unmatched in the history of human efforts to govern.
I think some of the core ideas that distinguish America from all other nations are under serious attack by well meaning but nevertheless dangerous people. And, unfortunately, technology has produced the ideal weapons, like drone aircraft, powerful tiny cameras and computers capable of sorting and compiling information about us on a scale impossible to imagine. These weapons, eagerly adopted by those who perceive government’s power as a desirable means of insuring our safety, have caused a perilous imbalance between the force of government and the power of a democratically empowered population. Delegating to military agencies functions traditionally left to civilian law enforcement authority has become an accepted circumstance, claimed to be necessary to insure our safety. Secrecy has been allowed to conceal information that is necessary to alert us to government judgments and choices that threaten our freedom and render impotent the protection we sought when we adopted our Constitution.
After thinking about all this, I had to organize and write some kind of structured statement of my concerns. This enables me to sort out my fears and confront them with pertinent facts. Only then can I say to myself, “This is the way this problem developed. I see how some of the pieces fit together. I now have an outline in my brain, a kind of scaffolding to adorn with future information. I think I can now tell the difference between real peril and distracting rabbit trails.”
Finally, for those of you, if any, who are still with me: I want to share with you a video of a “good ol’ boy”‘s YouTube tirade against the government that finally works up to a justification for killing American soldiers. This is the kind of rhetoric that Anwar Al-Awlaki is accused of using in his YouTube rants. As you watch it, understand that the speaker is the co-owner with his wife of a weapons store and that this is one of 170 videos posted by him on YouTube. See philliptjrYouTube
I think this guy is pathetic, but I damn sure don’t want some drone to drop a bomb or a missile on him. Not in my country. And, by the way, I am aware of the fact that I have just written a tirade of my own about the government. I insist there is an important difference between the two of us: I think it is vital that he be able to say whatever he wants to say. He probably thinks I, with my opinion about our gun culture, ought to be shot.