Gavel Grab

Is the new FISA law unconstitutional?

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Glenn Greenwald has authored a post on the ACLU‘s blog, the Blog of Rights.  The post, with the straightforward title “Is Retroactive Telecom Immunity Unconstitutional?” raises just that question before delving into the details of the argument that the immunity provisions of the recent FISA legislation was, in fact, unconstitutional.

Greenwald puts forward a number of arguments including an interesting separation of powers claim: 

Telecom immunity, “…constitutes a usurpation by the Congress and the President of the “judicial power” which the Constitution assigns to the judicial branch. Article 3, Section I, provides that ‘The judicial Power of the United States,shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,’ while Section 2 specifies that ‘[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States.’ ”

There are further questions raised regarding due process and the issue of direct constitutional challenges in the pending lawsuits since “It is axiomatically true that no statute, such as the one Congress just passed, can authorize constitutional violations.”

For the rest of Greenwald’s post, look here, and for previous coverage of FISA here at Gavel Grab check here, here, and here.

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New 'Eyes on Justice' Available

Justice at Stake has released the newest issue of our newsletter, Eyes on Justice. In this edition:

  • After Boumediene and FISA, a new season for constitutional liberties?
  • Ballot measure threatens courts in Michigan
  • California justices stage conference on impartial courts
  • State reports from Kansas and Pennsylvania.

Here is the link to our latest newsletter, and if you would like to sign up for the e-mail list, click here.

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FISA Lawsuit Update

On Friday Gavel Grab updated everyone about an article written by Chris Hedges detailing his objections to the new FISA bill.  Also mentioned was a lawsuit filed by the ACLU.

The ACLU has issued a press release detailing their lawsuit.  Ultimately, the lawsuit hinges on the removal of meaningful judicial oversight over issuing warrants, as demanded by the Fourth Amendment.  The issue is nicely captured in this quote from the release:

“Spying on Americans without warrants or judicial approval is an abuse of government power – and that’s exactly what this law allows. The ACLU will not sit by and let this evisceration of the Fourth Amendment go unchallenged.”

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LA Times Column Targets FISA, Court Role

Chris Hedges wrote a piece in the Los Angeles Times today that identifies some substantive and procedural problems with the newly passed FISA bill.  Unlike many other articles, Hedges addresses one fundamental problem with the FISA “compromise,” the fact that the courts’ oversight is incredibly limited in terms of what they can actually review. Basically, the courts won’t be allowed to look into the specific reasons an individual is being wiretapped, just the general procedural steps that are taken. 

This has prompted Hedges to join a lawsuit filed by the ACLU.  He joins a slew of other plaintiffs like Naomi Wolf, attorneys David Nevin, Scott McKay, Dan Arshack and Sylvia Royce, and numerous organizations.  While it’s not clear yet how this lawsuit will play out – and it certainly won’t do so in the immediate future – it’s nice to know that the courts will have the opportunity to weigh in on whether or not they can legally be excluded from actively monitoring wiretap requests!  This could lead to a potentially historic debate about the Fourth Amendment, which hasn’t been the sticking point in major constitutional litigation for a while now. 

Hedges’ concerns are similar to comments from Justice at Stake posted earlier today in Gavel Grab.  

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JAS on FISA and the Courts

Bert Brandenburg, executive director of the Justice at Stake Campaign, has issued the following comment on this week’s FISA overhaul bill. Bert also spoke on national security issues in a radio interview Wednesday. To learn more about that interview, click here.

A crucial constitutional question has gotten lost in the coverage of FISA, wiretaps and telecommunications: the indispensable role of courts as enforcers of the Bill of Rights.

Courts were created because rights don’t enforce themselves. Our framers created a system of checks and balances to ensure that government stays accountable to the Constitution. That’s why courts have always forced law enforcement to show evidence if they want to search or eavesdrop on people.

The new FISA law has its merits, but too often it replaces our judges’ gavels with rubber stamps. If courts can only review government procedures, but not adequately inspect the government’s justification and evidence in individual cases, the Constitution’s guarantees lose meaning.

On this point, American history is clear: When searches and wiretaps are conducted without active court scrutiny, abuses increase. Congress may have finished for the summer, but their work is not done. Lawmakers need to resume this debate next year, to make sure that courts have the power they need to protect security and liberty, and keep government accountable to the Constitution.

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Justice at Stake on the Radio

Bert Brandenburg, executive director of the Justice at Stake campaign, gave a 30 minute interview on Wednesday on 99.5 FM, WBAI radio of New York City on the show Talk Back with Hugh Hamilton. Bert discussed a range of federal topics from the FISA legislation, the Boumediene decision and others. Here is a link to the interview.

This interview coincides with Justice at Stake’s recently released review of the Federal Courts and Government handling civil liberties, the fight against terrorism, and the role of fair and impartial courts in the last year. For more information on the Federal Courts, check out our publication Courting Danger.

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More Merit Selection News

Rich Robinson, executive director of Justice at Stake partner group the Michigan Campaign Finance Network, will be speaking at a forum this evening along with Michigan State Supreme Court Justice Marylin Kelly. The purpose of the forum will be to discuss “Threats to a fair, open, and independent Supreme Court.” The forum comes at a time when Michigan’s supreme court ranks last amongst all states in partisan independence according to a University of Chicago report. Please, come out and support our partner group, and if you do attend come back to this blog and comment on the forum.

Elsewhere, interesting developments are taking place in Minnesota. The state’s new Chief Justice, Eric J. Magnuson, says he favors Merit Selection for selecting Minnesota judges. Magnuson favors merit selection because he wants to prevent, Well-heeled special interests attempting to manipulate the judicial process.” Magnuson also states, “Perceptions of fairness, equity and access I think will be dramatically undermined if the public’s confidence erodes and it only takes one big campaign to do that.” We at Gavel Grab will keep you up to date with what is taking place in Minnesota.

While on the federal level, it appears that their will be a compromise on the FISA/Telecoms immunity struggle. How do you all feel about this potential compromise? Feel free to respond.

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5/23/08: Breakthrough in the Domestic Surveillance Debate, Guantánamo Trials Will not be Delayed, Nevada Lawyers Question Judges

At Supreme Court, 5-to-4 Rulings Fade, but Why? – The New York Times
Linda Greenhouse takes a look at why the Court is not as polarized as it was in the past.

Guantánamo Judge Won’t Delay Trials – The New York Times
Military judge will not delay Guantánamo trials.”

Lawmakers Near Agreement On Domestic Surveillance – Wall Street Journal
The issue of immunity for telecoms will be resolved with this possible agreement.

Attorneys most critical of judges’ knowledge of law – Las Vegas Review Journal
Attorneys in a Nevada county are very critical of some of their judges knowledge of the law.

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5/23/08: Breakthrough in the Domestic Surveillance Debate, Guantánamo Trials Will not be Delayed, Nevada Lawyers Question Judges

At Supreme Court, 5-to-4 Rulings Fade, but Why? – The New York Times
Linda Greenhouse takes a look at why the Court is not as polarized as it was in the past.

Guantánamo Judge Won’t Delay Trials – The New York Times
Military judge will not delay Guantánamo trials.”

Lawmakers Near Agreement On Domestic Surveillance – Wall Street Journal
The issue of immunity for telecoms will be resolved with this possible agreement.

Attorneys most critical of judges’ knowledge of law – Las Vegas Review Journal
Attorneys in a Nevada county are very critical of some of their judges knowledge of the law.

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4/11/08: What the Blogs Are Saying

Judge Kaye Goes Big, Sues New York Over Judicial Pay – Law Blog
More coverage on Judge Kaye and her suing for a pay raise, for NY judges, on the Wall Street Journal.

Read more…

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