In these other dispatches about fair and impartial courts:
- In a speech in Boise, Idaho, retired U.S. Supreme Court Justice Sandra Day O’Connor addressed the need for improved civic education. The Voice of Tucson reports that she provided statistics on the lack of information the average citizen possesses regarding our government and democratic system. Justice O’Connor serves as Honorary Chair for Justice at Stake, and in support of civic education Justice at Stake has recently launched ourcourts.org.
- The Washington Post reports that Judge F. Dennis Saylor ruled on Friday that the Foreign Intelligence Surveillance Court must declassify all legal opinions relating to Section 215 of the Patriot Act. These opinions were written after May, 2011, and are not currently subject to FOIA litigation.
- This October, the U.S. Supreme Court will hear the case McCutcheon v. Federal Election Commission, which could result in the eradication of “aggregate” limits on the federal campaign contributions that a donor can make. USA Today reports Chief Justice John Roberts could be the key swing vote in this landmark case.
- Mlive reports that the State Bar of Michigan is calling on Secretary of State Ruth Johnson to prohibit “dark money” from being used in elections on what are known as “issue ads.” Currently, any ad that does not endorse a candidate is classified as an issue ad, and there are no disclosure requirements for the donors who fund these ads.
In these other dispatches about fair and impartial courts:
- “The more I read and the more I listen, the more apparent it is that our society suffers from an alarming degree of public ignorance,” retired U.S. Supreme Court Justice Sandra Day O’Connor said in a speech in Boise, Idaho, according to the Idaho Statesman. She founded icivics.org, an online civic education program. Justice O’Connor recently joined Justice at Stake as its first honorary chair.
- The federal government will declassify some sections of certain secret opinions issued by the Foreign Intelligence Surveillance Court regarding U.S. power to seize records under the USA Patriot act, according to the Associated Press.
The secretive federal Foreign Intelligence Surveillance Court has gotten a measure of attention in the wake of recent disclosures about government telephone and Internet data-gathering programs. Now NPR’s Morning Edition has devoted an intriguing report to changes in the role of the court since the Sept. 11, 2001 terrorist attacks.
Here is reporter Nina Totenberg’s conclusion:
“At bottom, … few if any experts in the Bush or Obama administrations believe that the FISA court has the enforcement teeth it once had. Many of those teeth were pulled out by the 2001 Patriot Act and the 2008 amendments to the foreign intelligence surveillance law. For good or ill, as one expert put it, the court has been defanged, at least until and unless Congress decides to restore some of its powers.” Read more
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.
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.
The capture of Sulaiman Abu Ghaith, a son-in-law of Osama Bin Laden, has rekindled debate over prosecuting terror suspects in civilian courts versus military tribunals.
On Friday, Mr. Abu Gaith pleaded not guilty in a federal court in lower Manhattan to charges of plotting terror against Americans, the Associated Press reported. U.S. authorities said he was a spokesman for al-Qaida.
The Wall Street Journal reported that some Republicans think Mr. Abu Ghaith belongs before a military tribunal at Guanatamo. ”Al Qaeda leaders captured on the battlefield should not be brought to the United States to stand trial,” said Rep. Mike Rogers, chairman of the House Intelligence Committee. “We should treat enemy combatants like the enemy.”
Sen. Kelly Ayotte, R-N.H., said that the terror suspect would become entitled to the rights of a U.S. citizen — including a speedy trial — by being in New York, Politico reported.
Five accused 9/11 terrorists including admitted architect Khalid Shaikh Mohammed are facing charges before a military commission system that is improved, but that “simply doesn’t afford the defendants the gold standard of American justice,” a Los Angeles Times editorial said.
The editorial was entitled “Justice and the 9/11 defendants: A military tribunal is not the best way to demonstrate America’s commitment to the rule of law.”
The revised military commission system, improved over that established by the George W. Bush administration, remain less protective of defendants than does a civilian trial, the editorial said. In addition, the commission system falls under the aegis of the same military that locked up the defendants and held them for almost a decade.
“[B]oth substantively and symbolically, it is an unacceptable alternative to a civilian trial of the kind that has successfully convicted other terrorists,” the editorial added. It placed blame on both Congress for blocking earlier plans for a civilian trial and the Obama administration for important errors in handling the matter.
Earlier this month, the defendants were arraigned at a proceeding before the military commission at Guantanamo Bay, Cuba (see Gavel Grab).
Since the terrorist attacks of 2001, the USA PATRIOT Act and other policies have weakened the historic power of courts to protect our rights and check possible government abuses, Justice at Stake says on its web site. To learn more, see Justice at Stake’s “Courting Danger” report.
The American Civil Liberties Union has formally asked that the American public be allowed to hear testimony from five accused 9/11 codefendants about their experiences at the hands of CIA captors in secret prisons overseas. The defendants, including Khalid Shaikh Mohammed, are to be arraigned Saturday at Guantanamo Bay.
Under the system to be used by the tribunal, a 40-second delay is employed. That is time enough, according to a Miami Herald article, for an intelligence official to punch a white noise button if any of the defendants describe what CIA agents did to them between their capture in Pakistan and their arrival at Guantanamo, several years later. Spectators view the courtroom proceedings from a soundproofed, glassed-in booth.
The challenged practice amounts to censorship, the ACLU contended, saying it was premised on “a chillingly Orwellian claim” that the accused “must be gagged lest he reveal his knowledge of what the government did to him.”
The 9/11 case about to begin at Guantanamo will “test whether alleged terrorists can get justice before U.S. military tribunals,” a Bloomberg article said.
According to civil liberties advocates, civilian courts would provide greater legal protections — such as the exclusion of evidence tainted by torture — for the five men.
“A prosecution that ultimately fails to measure up to international standards of justice undermines our credibility in the eyes of the world and plays into the hands of those who want to attack us,” said David Glazier, a law professor at Loyola Law School in Los Angeles.