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Federal Court Throws Down Gauntlet Challenging NSA

The Supreme Court has several times deployed stratagems that insure that the government or corporations may continue unimpeded to do as they choose without interference from a pesky public. The Court has more than once ruled against class actions, leaving individuals to combat corporations on their own, and has ruled that plaintiffs do not have “standing” to sue the government. That is, they cannot sue on principle to right a wrong if not damaged themselves, and if they cannot prove they were affected because a secret government action prevents them from knowing of it, they have no right to challenge.

The explosive revelations by Edward Snowden of massive spying by the NSA should change that — which is not to say that anything will in fact change, given this Court’s posture. But the justices will need to come up with some convoluted logic to again rule — when one or more of several cases reach their chambers — that plaintiffs still have no standing. This time they will have to explain to us why the protection against “searches and seizures” of the Fourth Amendment of the Constitution speaks of something that absolves the collection and retention of five years of some 300 million Americans’ phone call contacts.

The first case to obtain a ruling at the federal court level was decided in mid-December against the government and in favor of the several parties who brought the suit, principally Larry Klayman, a conservative activist and founder of Freedom Watch. Judge Richard Leon of the D.C. federal district court ruled that, now that we know that everyone’s phone records have been collected, Klayman’s et alia’s among them, the plaintiffs therefore this time have met the test of standing, and that the government’s actions run afoul of their Fourth Amendment rights.

February’s catch-22

Just four months prior to Snowden’s bombshell, the Supreme Court used lack of standing to turn away a complaint brought by an alliance of human rights groups, journalists, lawyers and academics who argued that secret eavesdropping by the state on international phone and e-mail traffic could impair their work by compromising confidentiality, thus closing off contact with those outside the U.S. who know they are being spied upon.

The Court said the group could not prove they had been damaged or deprived of rights by the government’s surveillance: secrecy prevented them from acquiring the proof that they had been targeted by surveillance, so they lacked standing to sue. A kind of despair set in that the Court had decided to block any challenge to government spying.

In the majority opinion, joined by Justices Roberts, Scalia, Thomas and Kennedy, Justice Alito wrote that because the plaintiffs “have no actual knowledge of the Government’s … targeting practices…the claims of the challengers that they were likely to be targets of surveillance were based too much on speculation and on a predicted chain of events that might never occur”. Alito asked us to consider that there may be little or possibly even no surveillance going on. And secrecy sees to it that a litigant has no ability to prove otherwise.

Enter Snowden

The release of NSA documents in June showed that total surveillance was going on.

The Klayman ruling jumped ahead of similar suits, the most prominent being that brought by the American Civil Liberties Union right after Snowden’s revelations debuted. Like Judge Leon’s calling the NSA practices Orwellian, so did the ACLU invoke George Orwell’s seminal novel,”1984” as well as “The Lives of Others”, the oft-cited film about the Stasi, the security service that infamously was found to have kept files on every inhabitant of East Germany.

There are those who say they have done nothing wrong, are unneedful of the Fourth Amendment’s protection, and therefore have no problem with NSA’s collecting all their telephone activity. After all, it’s just data. NSA chief Gen. Keith Alexander stroked that complacency in a “60 Minutes” telecast in mid-December — the network was allowed unparalleled access to NSA’s innards evidently in return for not challenging any of its claims — saying, “There’s no reason that we would listen to the phone calls of Americans. There’s no intelligence value in that. There’s no reason that we’d want to read their e-mail. There is no intelligence value in that”.

By refuting a claim that no one is making, the intent seemed to have been to persuade that NSA’s activities are harmless. But phone call content is not ACLU’s argument. They say the greater violation of the Fourth Amendment lies in the ability to establish all the connections in our lives, which is how NSA does use phone metadata. In support of the suit, Edward Felten, a professor of computer science and public affairs at Princeton, made that case:

“Calling patterns can reveal when we are awake and asleep; our religion, if a person regularly makes no calls on the Sabbath or makes a large number of calls on Christmas Day; our work habits and our social aptitude; the number of friends we have, and even our civil and political affiliations.”

“Calls to certain numbers — a government fraud hot line, say, or a sexual assault hot line — or a text message that automatically donates to Planned Parenthood” — can reveal some of the most intimate secrets of American citizens.
”Scraped” from the “60 Minutes” broadcast, the image shows NSA software linking the cross-connections between persons of interest and the numbers they in turn call.
And we recall Republican Congressman of Michigan Justin Amash asking by way of warning, “Have you talked to someone who has talked to someone who has talked to someone who might be a terrorist?” The spider web diagram above from the “60 Minutes” telecast shows how the metadata could find its way back to you .

Judge Leon’s heavily researched and footnoted 68-page decision makes it clear that he is reaching well beyond Klayman’s allegation of hacked e-mail sent by the government in his name and the belief that “they are messing with me”. It is unimaginable that the Supreme Court would halt the entire NSA’s data collecting on the basis of claims that it might view as paranoid. The judge’s heavily researched and footnoted treatise brushes past that and — sure that this and other cases will move to the Supreme Court, — he is much more interested in the larger issue of the Fourth Amendment, finding that “plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the Government’s interest in collecting and analyzing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the Fourth Amendment”.

Leon uses information forced into the light since the Snowden releases. As we, too, have said earlier, given that “the government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time sensitive in nature”, he makes the case that the public’s expectation of privacy outweighs any claim this surveillance is essential to national security.

Because Congress, in authorizing the FISA court, has created a closed-end process that makes no provision for challenging that court’s secret rulings by the public or review by the nation’s courts, the judge wisely to confronts the question of whether his court — a federal court, no less — has the standing to challenge the data capture program on constitutional grounds. It’s a reasonable surmise that he is looking ahead to a Supreme Court that might be tempted to dismiss his decision by simply ruling that his court is permitted no jurisdiction. To head that off he cites a case (Webster v. Doe — 1988) in which decision “the Court stated emphatically that ‘where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear’”.

Both the ACLU and Judge Leon contest the precedent that the government uses to argue that phone surveillance is legal: 1979’s Smith v. Maryland. That Supreme Court ruling said that phone logs were not protected by the Fourth Amendment. But those were the logs of a single individual, and in a criminal case — “narrow surveillance directed at a specific criminal suspect over a very limited time period”, said the ACLU filing. In contrast, Judge Leon in Klayman fumes, “I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval”. He is sure that the Constitution’s author, James Madison, would be “aghast” at what he long ago so presciently forewarned would be “the abridgment of freedom of the people by gradual and silent encroachments by those in power”.

Knowing that the government will appeal, Judge Leon stayed issuing an injunction that would demand NSA to stop its data collection.

Dec 28 2013 | Posted in Secrecy & Surveillance | Read More »

Second Federal Judge Disagrees, Sides With NSA

The New York federal district court has contradicted Judge Richard Leon of the equivalent court in D.C. (see related article), deciding that the NSA’s wholesale phone data collection is legal. Leon had declared it “almost clearly unconstitutional”. Judge William Pauley in New York looks at the same facts and concludes the opposite.

Pauley entirely bought into the notion advanced by Sen. Dianne Feinstein in a Wall Street Journal op-ed and by Gen. Keith Alexander, the head of NSA, on “60 Minutes” in mid-December that, had the phone metadata archive been in place, the 9/11 attacks could have been averted. He even began his opinion with this as justification.

Time’s passage has clearly dimmed the judge’s memory. We had earlier mocked Feinstein’s claim with our recall of the many failed communications between government agencies that came to light in the analysis after 9/11. Doesn’t he remember “connect the dots”? If FBI’s suspicions weren’t aroused by one Zacarias Moussaoui taking Boeing 747 flight simulator instruction in Minneapolis without wanting to learn how to take off or land — only one of the instances of dropped balls — how could the judge argue that the myopia of those agencies would have magically cleared to spot phone calls to a Yemen safe house and connect those tiny dots to the 9/11 plot? It is a fanciful basis for a serious legal opinion.

Just after this article was first released, Politico reported that Pauley is loose with his facts. Referring to the Saudi who made those calls to Yemen from San Diego, Paulry writes in his opinion,

“The NSA intercepted those calls using overseas signals intelligence capabilities that could not capture al-Mihdhar’s telephone number identifier. Without that identifier, NSA analysts concluded mistakenly that al-Mihdhar was overseas and not in the United States.”

The judge bases this, and the hypothetical that NSA could have thwarted the 9/11 attacks, on the 9/11 Commission’s report of 2004. But that report contains no specific mention of the calls to a Yemen safe house; NSA had refused to release such closely guarded information to the commission.

Moreover, Politico says former Florida Senator Bob Graham, who “extensively investigated” 9/11 while chairman of the Senate Intelligence Committee, said “There were plenty of opportunities without having to rely on this metadata system for the FBI and intelligence agencies to have located Mihdhar” were it not for the failure of the government agencies to share information that made headlines when revealed in 2004. In other words, the very assertion that Pauley, Alexander and Feinstein make does not owe to the absence of the metadata horde; it was instead another of the intelligence agencies’ dropped balls.

a precedent vastly expanded

For Pauley there seems nothing untoward about treating Smith v. Maryland — a 1979 Supreme Court decision involving only a single individual in a criminal case that held that the use of his phone logs as evidence was not a Fourth Amendment violation — as “bedrock” and extensible to the vacuuming without cause years of phone logs of the entire American population.

“Smith’s bedrock holding is that an individual has no legitimate expectation of privacy in information provided to third parties”, Judge Pauley writes. That’s not original with Pauley. It’s a stock argument from those who are unperturbed by the eroded Fourth Amendment, once uttered even by Justice Sotomayor. It pretty much says that anything goes. Forget all those privacy notices that come in the mail, because the judge says privacy is forfeit in whatever interaction we have with third parties. What’s the difference between phone records and bank records, for example? The judge is saying that NSA is equally free to sweep up your bank transactions, and everyone else’s from all the nation’s banks. Will what have always been treated as privileged communications, namely, counseling sessions with those third parties called attorneys, be next?

Dec 28 2013 | Posted in Law | Read More »

What’s It to Be, Austerity or Economic Populism?

Republicans are savoring the opportunity in the 2014 elections to bludgeon Democrats with the Obamacare debacle. Of the 33 Senate seats in play next year, 21 are currently held by Democrats. Republicans need a shift of only six seats to
Gary Varvel, Indianapolis Star
win majority control, and seven of those Democratically held seats are in states won by Mitt Romney last November.

Democrats have dim prospects of toppling the 234 to 201 Republican majority in the House, with so many locked in place by gerrymandering. But Democrats can point to the Republicans’ own debacle of shutting down the government in October and can lambaste the 144 House Republicans who voted to default on the nation’s debts — unless that infamy continues to be eclipsed by Obamacare missteps.

There is, however, an undertow that may gather enough force to sweep both these campaign denunciations aside: the difficulties so many Americans are experiencing with an economy stuck in neutral. Public awareness of the enormous disparity between the 1% and the 99% is acute and has led to the angered view that the system is rigged, especially among young voters, two-thirds of whom said in 2012 election exit polls that the American economic system favors the wealthy. An unfair economy in which a few haves take it all and leave the crumbs for the have nots may become the larger issue in next year’s elections. “Economic populism” is on the rise.

the new math

The financial collapse of 2008 led to the realization that America had developed a false prosperity based on credit card debt and the belief that the ascent of home values would never cease. Instead, the median income of American households plunged 8.3% to $51,017 at present from its peak in 2007. That was no higher than a quarter century ago. And the net worth of the median American family actually fell 6% over those years.

Five years on from the crash of 2008 there is little sign that household income will return to former levels. The income of the bottom quarter of U.S. families has actually fallen since the 1970s. For the average American male, income adjusted for inflation has essentially flatlined since the then, according to the Census Bureau. Women have done better, experiencing an increase of 29%, but none of that increase was in the past decade, and it comes largely from moving to higher status jobs compared to the years when women were relegated to fetching coffee for the boss.

Two years ago, when the media began taking notice of income disparity, we learned that the top 1% of Americans earned 1/5th of all income and controlled 1/3rd of all wealth, a share not seen since 1929. The top 10% of earners hauled in 1/2 of total income, and owned 2/3rds of the nation’s wealth. The bottom 90% was left with just 27%.

The imbalance has only grown worse. In contrast with the decline suffered by everyone else, the wealthiest recovered nicely from the fiscal collapse. The top 5%, who own 82% of all stocks, has just seen the stock market set all-time highs. The top 1% took in 1/5th of all the income earned by the entire country in 2012. They’ve captured 95% of all income gains since the recession supposedly ended.

While they sip champagne at art auctions and watch the bidding for a single artwork reach $142.4 million, they may not have noticed the latest government estimate of Americans living in poverty ratchet upward again to 49.7 million– almost one in six. More than three-quarters of us say they are living paycheck to paycheck. In a survey of a thousand adults, fewer than 1 in 4 said they had enough money to cover six months of expenses. Half said they have less than a three-month cushion. A quarter said they have no savings at all.

A quarter of Americans say they had trouble putting food on the table in the past twelve months, a gain of 50% since 2007 before the Great Recession began. Three quarters of Americans nearing retirement in 2010 had less than $30,000 stashed away — one medical emergency away from bankruptcy. Nearly half of American die with less than $10,000 in financial assets.

So much for any notion that beneficence would trickle down from the top, a self-justifying dodge if there ever was one. “Things just don’t trickle down”, says Sheldon Danziger of the Russell Sage Foundation. “If the full-time, full-year male workers aren’t benefiting from economic growth, why should we expect the poor to be?”. Even if so inclined, the rich can’t spend their money fast enough to make a difference. And they are not inclined. Their preference is wealth accumulation. Their claim that they are the source of enough job creation to matter is the other self-serving myth.

opposite poles

On one side of the battle line of 2014 is Republican austerity — their belief that shrinking the deficit and the debt is paramount if the United States can hope to retain its power in the world. Their belt-tightening is literal. The House passed a bill that would cut $40 billion from the food stamp program over ten years. Spending cuts, in their view, combined with reduced regulation and still lower taxes will lead to growth and well-paying jobs.

But we did reduce taxes. The Bush tax cuts were quite severe — 20% on average, and still deeper on capital gains and dividends. If tax cuts spawn growth, how do we account for arriving at today’s dismal economy? Instead the favored tax treatment of investments helped create the 1% to 99% divide.

“With the exception of America’s richest 1%, no other income group rates the U.S. budget deficit among the country’s biggest threats, according to polls. The remainder rank unemployment and stagnant incomes as bigger problems”, observed Ed Luce in the Financial Times.

On the other side, might we see a full bore outbreak of economic populism in retaliation for an economy so heavily skewed in favor of the wealthy? An early outcrop that it might become the dominant thread in 2014 was the flurry of notice paid to an essay in the New Republic by Noam Scheiber. Its thesis is that the already-presumptive Democratic candidate for the presidency, Hillary Clinton, has a problem. She and Big Dawg Bill are associated with the megamoney of Wall Street and Hollywood at a time when the public grows increasingly hostile toward the power élite, and when most Democratic voters “are angrier, more disaffected, and altogether more populist than they’ve been in years”. The article cites a Pew Research poll showing that socialism has a slight edge over capitalism with voters under 30. Scheiber contemplates who might better swim in a rising tide of populism than the establishment Clintons:

“The candidate would almost certainly have to be a woman, given Democrats’ desire to make history again. She would have to amass huge piles of money with relatively little effort. Above all, she would have to awaken in Democratic voters an almost evangelical passion. As it happens, there is precisely such a person. Her name is Elizabeth Warren. ”.

Populism essentially stands for defending the people from deprivation of their rights, their well-being and their voice in society by an oligarchic elite. But if economic populism translates as expanding the safety net by taxing the rich and giving to the poor, that does not create a robust economy. The question is where would a new prosperity for the underclass come from? What if the painfully slow recovery has run its course? A number of economists and commentators have been coming around to the view that we may be looking at a “new normal” without much prospect for further growth. “What if depression-like conditions are on track to persist, not for another year or two, but for decades?”,
asks Paul Krugman at The New York Times. Almost next Federal Reserve chairman Larry Summers, once deeply involved in the deregulation of banks that led to the crash, now worries that the U.S. might be stuck in chronic “secular stagnation” with only stimulus or bubbles capable of increasing jobs.

The globalization that has enriched multinational corporations has created an oversupply of cheap labor and the exodus of much of U.S. manufacturing to other countries. Corporations here, aided by rising productivity and robotics, have found they need fewer workers. Job gains tend to be low wage and part time, the latter close to 20% of all jobs. All attempts — the $812 billion 2009 stimulus (36% of which was tax relief), the Fed pumping $85 billion a month into the economy — have lessened but failed to cure persistent unemployment.

The first step in a turnaround is for government and society to turn their attention to the problem rather than to perennially distracting sideshows. For Republicans the answer does not lie in government action. Their view is that if we reduced government, regulation, and taxes we would see growth occur on its own. But that is theory without empirical proof.

Democrats would act directly to create jobs, putting people back to work tackling the nation’s vast infrastructure problems, repairing the outdated electrical grid and converting away from oil to alternative forms of energy. But with a nation already $17 trillion in debt, where would the money come from?

One way or another, this nation needs to decide which road to take.

Dec 14 2013 | Posted in Politics | Read More »

The Push to Boost the Minimum Wage

Dec 12 2013 | Posted in Elsewhere | Read More »

Exasperated Democrats Cut to the Chase

There was a universality to the reaction — in editorial pages, television interviews, web blogs, wherever — to the Democrats’ Senate move to end the 60-vote supermajority hurdle for the President’s executive and judicial branch appointments. Reactions could all be distilled to “they had to but they shouldn’t have”.

Republicans have used the filibuster to block almost all legislation and appointments of the Obama administration — part of the avowed strategy of Minority Leader Mitch McConnell, who said in a 2010 interview “the single most important thing we want to achieve is for President Obama to be a one-term president”. That didn’t quite work out, but blocking Obama’s objectives was the next best thing. Democrats used the same tactic during the Bush administration, although to much less degree.

A Senate vote ordinarily requires only a simple majority to carry (e.g. 51 to 49). A filibuster is declared to prevent that vote from occurring. The Constitution allows the Senate to make its own rules and the Senate rule called for 60 votes to end the filibuster and permit a regular vote on a bill or resolution to ogo forward. Meant for exceptional use, the filibuster gave the minority some power against the majority to halt a bill or appointment that it found overly objectionable. It originally required talking a bill to death on the Senate floor until the opposite side caved, but in recent times the mere threat of a filibuster was sufficient to cause the Senate to move on to the next item on its agenda.

Democrats finally voted the filibuster into extinction in desperation after Republicans had deployed it 82 times during Obama’s term versus 86 filibusters under all prior presidents.

When filibusters thwarted three successive Obama appointments to open seats on the U.S. Court of Appeals for the District of Columbia Circuit — the all-important court that hears most of the government’s own cases — the Democrats had enough. The point was reached where unprecedented obstruction had broken “the world’s greatest deliberative body” and they sent the filibuster to its place in history, 52 to 48.

Republicans vow revenge. “You’ll regret it” said Iowa’s Chuck Grassley. “It’s a sad day in the history of the Senate,” a Democratic “power grab”, said McConnell to reporters. Finally acting on his prior threats, Majority Leader Harry Reid held that “the American people believe the Senate is broken, and I believe the American people are right,” he said, adding: “It’s time to get the Senate working again.”

The punditry decided the Democrats were fully justified but then pedaled backward — sometimes in the same sentence — when they considered what lies ahead. “Democrats were fully justified in stripping Republicans of their right to filibuster President Obama’s nominees — yet they will come to deeply regret what they have done”, wrote Dana Milbank at The Washington Post. Mark Shields on the PBS NewsHour called it a mistake to scuttle the filibuster option against judicial appointments because unlike cabinet posts, which end when a president steps aside, judges are left in place long after a president is gone. Without having to get at least some votes from the opposition party, David Brooks on the same program predicted much more polarized choices. His concern is deeper: “the erosion of the institute of the Senate, what makes the Senate special. You are basically turning the Senate into the House… beginning the erosion of minority rights”.

In the same vein was Paul Kane at the Post lamenting the damage to a Senate that “for more than two centuries has prided itself on affording more rights to the minority party than any other legislative body in the world”.

The Wall Street Jiournal’s editorial page called it “Senate Rules for Radicals” and said “the great irony is that Democrats voted to end the practice of judicial filibusters that they pioneered when George W. Bush was president…Yet now that Republicans are returning the favor, Democrats are up in arms”. No mention that Republicans have returned the favor several times over.

what’s to come

Several commentators assumed that preservation of the 60-vote hurdle for Supreme Court nominees would soon topple along with the rest of judicial nominees. As our other article points out, control of the Senate may pass to Republicans next year if they can gain six seats. In retaliation, they could further dismantle the filibuster, eliminating it for legislation as well, and then join the 40-plus House votes to repeal Obamacare with a simple majority vote, leaving only the President standing alone to wield a veto.

The best commentary belonged to E.J.Dionne in the Post, tracing what he views as the long-term Republican campaign to control the judiciary. “This era’s conservatives will use any means at their disposal to win control of the courts” and that leaves little doubt that, if the Democrats hadn’t trimmed the filibuster rule, Republicans will do so the moment they regain the majority in the Senate. Considering their ongoing battle to use any means to bring down Obamacare, that’s hard to dispute.

Dec 2 2013 | Posted in Politics | Read More »