Archive for the 'Civil Liberties' Category
The American Civil Liberties Union has filed a lawsuit challenging the constitutionality of a National Security Agency phone data collection program that was the subject of a leak to news media last week, which in turn ignited controversy over the court-approved program.
According to a New York Times article, the challenged effort was launched as part of the George W. Bush administration’s surveillance programs conducted without court approval, and it “has continued since 2006 with the blessing of a national security court” under the USA Patriot Act. That secretive bench is called the Foreign Intelligence Surveillance Court.
A New York Times editorial called for a substantive public debate over government surveillance, and it urged Senate Intelligence Committee Chairwoman Dianne Feinstein to pry open some closely held secrets of the Foreign Intelligence Surveillance Court.
She ought to demand that the Obama administration make public a document explaining strictures on a secret phone-data collection program that was the subject of a news leak in the past week, the editorial said. She had alluded to the document on a TV talk show.
In addition, perhaps a public debate would benefit from release of some of the court’s opinions that made the data-collection program possible, and Sen. Feinstein could prod the administration “to make the court even slightly more transparent,” the editorial said.
A different approach to bringing sunlight to some the secretive court’s work product was expected in the Senate. According to an article in The Guardian, a group of senators was preparing to introduce on Tuesday a bill “to force the government to disclose the opinions of a secretive surveillance court that determines the scope of the eavesdropping on Americans’ phone records and internet communications.” Read more
The role of a secretive federal court in Washington is getting increased scrutiny as debate rages over disclosures of programs for U.S. government surveillance and collection of telephone call and Internet data for national security purposes (see Gavel Grab).
On Friday, President Obama said in defense of the programs, according to the Washington Post, “What you’ve got is two programs that were originally authorized by Congress, have been repeatedly authorized by Congress, bipartisan majorities have approved them, Congress is continually briefed on how these are conducted . . . and federal judges are overseeing the entire program throughout.”
But whether the oversight provided by the branches, including the Federal Intelligence Surveillance Court, is meaningful was questioned by civil libertarians, some academics and members of Congress.
“I find it difficult to believe that Congress or the FISA court provide the robust oversight to which President Obama alluded,” Stephen I. Vladeck, who teaches law at American University, told the Washington Post for a separate article.
When the court entrusted with ensuring Americans’ rights in this realm “meets in secret, allows only the government to appear before it and rarely publishes its decisions,” there is undermining of judicial oversight, contended Jameel Jaffer of the American Civil Liberties Union. Read more
Surveillance, privacy, and civil liberties remained perhaps the hottest Washington topics of the day on Friday after disclosures about the National Security Agency and FBI gathering intelligence through leading Internet companies, to track foreign targets. This followed earlier reports (see Gavel Grab) about government collection of telephone records for millions of Americans.
A national security court figured in the news reports about both surveillance programs, and it was becoming a topic of commentary.
The Washington Post and The Guardian broke the news about Internet surveillance. “Surveillance Leaks Likely to Restart Debate on Privacy,” declared a New York Times headline. According to the article, “an array of civil liberties advocates and libertarian conservatives said the disclosures provided the most detailed confirmation yet of what has been long suspected about what the critics call an alarming and ever-widening surveillance state.”
The role of the secret Foreign Intelligence Surveillance Act court in ordering the telephone record collection was addressed by a New York Times editorial. “We are not questioning the legality under the Patriot Act of the court order disclosed by The Guardian. But we strongly object to using that power in this manner,” the editorial said.
The Guardian newspaper triggered immediate controversy when it reported on Wednesday, “The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.”
The report by the United Kingdom-based newspaper about surveillance activities carried out under the Patriot Act in the Obama administration quickly drew comment from top leaders in Washington.
Leading Senate Intelligence Committee members offered a context for the report, according to a New York Times article. They said the three-month order looked like it was a routine reauthorization under a more far-reaching program that lawmakers have been familiar with for quite a while.
“As far as I know, this is exact three-month renewal of what has been the case for the past seven years,” Sen. Dianne Feinstein said, adding that it was handled by the Foreign Intelligence Surveillance Court “under the business records section of the Patriot Act. Therefore, it is lawful. It has been briefed to Congress.”
Sen. Richard Durbin of Illinois voiced alarm. “There’s been a concern about this issue for some time,” he said. “That’s why I think sunsetting many of these laws is appropriate because circumstances change in terms of America’s security. And our information and knowledge change in terms of threats to America.” Durbin and Feinstein are Democrats.
The FISA court is a secret national security court. It issued the order to a Verizon subsidiary. The order involves “metadata,” collections of time and data logs that do not reflect either content or a subscriber’s name.
Jeh C. Johnson, the Pentagon’s former top lawyer, expressed skepticism about ideas floated for a kind of national security court that would review government targeted killings of U.S. citizen terror suspects overseas.
He said one of the numerous difficult questions about such a court would be whether its scope extended just to Americans or also to other suspected terrorists, according to a New York Times article. Another question would involve the inevitable accusations that the court served as a “rubber stamp” for targeted killings.
In his speech at Fordham Law School, Johnson also raised questions about judges being used as “top cover” for “death warrants” when the executive branch alone provides secret evidence to them, and especially in situations where fast-changing criteria — such as the assessment of an imminent threat — are involved.
The New York Law Journal also provided coverage of Johnson’s address.
U.S. District Judge Susan Illston (photo) has declared unconstitutional the FBI’s use of so-called national security letters to demand customer data from phone companies, banks and other businesses.
National security letters are issued without judicial review. They are subpoenas that permit the FBI to get records without obtaining a warrant first. Companies that receive national security letters may not disclose their receipt.
Judge Illston, seated in San Francisco, wrote that the government didn’t show that the gag policy and letters ”serve the compelling need of national security,” and the non-disclosure policy causes “too large a danger that speech is being unnecessarily restricted,” the Associated Press reported.
A legal challenge to expanded electronic surveillance of targets operating outside the United States was thrown out when the Supreme Court said the plaintiffs did not have legal standing to sue.
Justice Samuel Alito Jr. wrote in a 5-4 opinion that those people challenging the constitutionality of a 2008 law were unable to show it harmed them, according to a New York Times article. The law’s challengers included journalists and lawyers who represented detainees held at Guantanamo Bay.
At the National Constitution Center, longtime legal journalist Lyle Denniston poses the question, “Would a ‘drone court’ be unconstitutional?”
Denniston sets out to tackle the question in the “Constitution Check” column, given a debate in recent days (see Gavel Grab) over the idea of establishing a special federal court to review government targeted killings of U.S. citizen terror suspects overseas. He examines the Constitution, the concept of separation and powers, and precedent and leans heavily toward an opinion that such a court would not be constitutional:
“No matter how eagerly some policymakers want to put some legal restraints on the Obama administration’s policy of targeted killing by drones in waging war on terrorism, it is a near-certainty that the idea of handing to a civilian court the power to decide who could be killed, and when, would not withstand constitutional scrutiny.
“It would turn judges into functioning adjuncts to the president’s ‘war cabinet,’ and give them a veto power over a policy that, however audacious or questionable, is still a part of the process of waging war.”
Creating a special federal court to review government targeted killings of U.S. citizen terror suspects overseas would be a “mistake,” former Acting U.S. Solicitor General Neal Katyal, who served under President Obama, argues in an op-ed.
“[T]here is no true precedent for interposing courts into military decisions about who, what and when to strike militarily,” Katyal writes in the New York Times. “Putting aside the serious constitutional implications of such a proposal, courts are simply not institutionally equipped to play such a role.”
Instead he proposes establishment of a “national security court” inside the executive branch as “a better way to balance the demands of secrecy and speed with those of liberty and justice.”
For background about the rising debate over the idea of a special drone court, see Gavel Grab.