Gavel Grab

Archive for the 'Civil Liberties' Category

Controversy Renewed as a Result of New Surveillance Disclosures

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.

At The Atlantic online, legal analyst Andrew Cohen contended the collection of telephone records represented overreach and that each branch of the government was “complicit.” Read more

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Domestic Surveillance Under Secret Court Order is Exposed

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.

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Former Pentagon Counsel Skeptical on Targeted Killing Court

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.

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Judge Declares National Security Letters are Unconstitutional

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.

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Surveillance Lawsuit Tossed by Supreme Court

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.

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Denniston: Targeted Killings Court Likely Unconstitutional

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.”

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Commentary: Targeted Killings Federal Court Would be a 'Mistake'

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.


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Ex-Judge: New Court to Approve Targeted Killings a 'Very Bad Idea'

It is “a very bad idea” for federal judges to be asked to monitor and ultimately approve “the killer instincts of our government,” retired U.S. District Judge James Robertson wrote in a Washington Post op-ed.

Judge Robertson addressed an idea that has recently gained a high profile, for creation of a special secret court devoted to “independent judicial review” of targeted administration killing lists, to be carried out through drone strikes (see Gavel Grab). The strikes would be aimed at American citizens who are suspected terrorists overseas.

The judge, who also served on a secret court that reviews federal surveillance orders, said, “U.S. judges have been hard-wired against rendering ‘advisory opinions’ since 1793″ when Chief Justice John Jay answered a question posed by President George Washington. Judge Robertson continued:

“From that letter — itself an advisory opinion — has grown a complex but well-established and understood set of constraints on the federal courts: They are to decide only ‘cases’ or ‘controversies’ that are ‘justiciable’ and ‘ripe’ for decision. Federal courts rule on specific disputes between adversary parties. They do not make or approve policy; that job is reserved to Congress and the executive.”

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Targeted Killings Court Supported by NY Times Editorial

Particularly when American citizens overseas are targeted for killing because they are suspected terrorists, they should be protected by the “fundamental principle” that people can be locked up or executed in America only upon orders by a jury or judge, a New York Times editorial says.

“A growing number of lawmakers and experts are beginning to recognize that some form of judicial review is necessary for these killings, usually by missiles fired from unmanned drones,” the editorial states. It goes on to support the idea of a special court, similar to the Foreign Intelligence Surveillance Court, to engage in such review.

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Debate: Should a Drone Strike Oversight Court Be Created?

The idea of creating a new court to furnish independent review of government-ordered targeted killing of suspected terrorists is getting serious discussion, and legislation for an oversight court may be proposed.

When senators held a recent hearing on President Obama’s nomination of John Brennan to be CIA director, the idea was raised, according to a New York Times article. “Having the executive being the prosecutor, the judge, the jury and the executioner all in one is very contrary to the traditions and the laws of this country,” said Sen. Angus King, an independent from Maine.

Brennan said there had been talks within the Obama administration about whether such a court would be feasible.

The Times reported, “A drone court would face constitutional, political and practical obstacles, and might well prove unworkable, according to several legal scholars and terrorism experts.”

Jameel Jaffer, deputy legal director for the ACLU, said, “There is no reason to create a new court.” The administration could be held accountable more effectively through use of existing courts to weigh challenges to the legality of targeted strikes that have occurred, he contended. Read more

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