Archive for the 'Civil Liberties' Category
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.
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.”
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.
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
NBC News made public a Justice Department memo revealing the Obama administration’s legal reasoning behind targeted killings of U.S. citizens accused of being terror suspects. The report sparked new scrutiny of U.S.-ordered targeted killings and calls for an oversight role by the courts.
“This is a chilling document,” Jameel Jaffer, deputy legal director of the ACLU, told NBC News. “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”
“Going forward, he should submit decisions like this one to review by Congress and the courts. If necessary, Congress could create a special court to handle this sort of sensitive discussion, like the one it created to review wiretapping. This dispute goes to the fundamental nature of our democracy, to the relationship among the branches of government and to their responsibility to the public.”
In legislation advancing toward final passage, Congressional negotiators dropped a provision that would have banned indefinite detention by the military of Americans arrested on U.S. terrain.
The provision was contained in an annual defense authorization bill, which Congress is expected to pass this week and send to President Obama. The White House has raised a possible veto threat over some provisions in the bill, according to a New York Times article.
A New York Times editorial seeks rules for the targeted killing of terrorists overseas — especially if they are American citizens — when the terrorists are not on a battlefield.
More than a year ago, a Times editorial judged it necessary to follow the rule of law and seek judicial review before targeting a U.S. citizen for assassination, citing the recent armed drone killing of Muslim cleric Anwar al-Awlaki in Yemen (see Gavel Grab).
This week, the latest editorial also addresses another option:
“[I]f an American citizen operating abroad is targeted, due process is required. We have urged the formation of a special court, like the Foreign Intelligence Surveillance Court, that could review the evidence regarding a target before that person is placed on a kill list. Otherwise, the government should establish a clear procedure so officials outside of the administration are allowed to pass judgment on assassination decisions.”