Hank Adler is an Assistant Professor at Chapman University.
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WhoWhatWhy has posted a link to the pdf of today’s court ruling on the NSA, here
U.S. District Judge Richard Leon ruled today that the government’s bulk collection of phone data probably is unconstitutional, setting up an appeals court showdown about Fourth Amendment rights over the secrets revealed by leaker Edward Snowden.
Leon, who was appointed by President George W. Bush, said that the National Security Agency’s metadata collection violates privacy rights, made a preliminary ruling in favor of five plaintiffs who challenged the practice.
His 68-page ruling included withering words for the federal government, describing the wholesale scooping of data as Orwellian.
“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every citizen for purposes of querying and analyzing it without prior judicial approval,” he wrote. “Surely, such a program infringes on ‘that degree of privacy’ that the Founders enshrined in the Fourth Amendment.”
He said the government has not revealed a single instance where the data collection “has actually stopped an imminent attack, or otherwise aided the government in achieving any objective that was time-sensitive in nature.”
The former NSA contractor Edward Snowden praised the ruling in a statement released through journalist Glenn Greenwald:
“I acted on my belief that the N.S.A.’s mass surveillance programs would not withstand a constitutional challenge, and that the American public deserved a chance to see these issues determined by open courts,” Snowden said. “Today, a secret program authorized by a secret court was, when exposed to the light of day, found to violate Americans’ rights. It is the first of many.”
Clearly, the NSA will stay on the front pages well into 2014. The link leads to Leon’s ruling. You can read it — and decide for yourself.
You can also get up to speed on other aspects of the attack on our privacy and constitutional rights, by rereading (or reading for the first time) some of the work WhoWhatWhy has been doing on these topics, such as this, this, this and this.
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A Utah district court ruled in favor of a polygamous family this past Friday. Oddly, the ruling relied heavily on arguing that a reason the United States outlawed bigamy was a distaste for practices of Eastern cultures–despite the Mormon Church being native to the United States.
The case, Brown v. Buhman (full legal opinion here), resolves a series of claims and counterclaims between the Brown family–stars of the reality show Sister Wives–and the state of Utah. As a District Court case that also resolves who rightfully belongs in the suit and why it should move forward logistically (and never mind the bizarre aside about Edward Said), following the legal procedure and getting to the real meat of this decision can be complicated for the layman. The trick is to follow what precedent the plaintiffs cite, and how seriously the court takes each.
The Browns argue that because of their prominence as reality TV celebrities, their living arrangement has been especially vulnerable to government intrusion. They claim they should be allowed to practice polygamy on a number of First Amendment grounds (free speech, free association, free exercise of religion), which allows them to also sue under the statute that creates a civil remedy for someone whose constitutional rights have been violated by the state (42 U.S.C. §1983). They also claim that they have not been given equal protection as a protected minority under the law and that the state has violated their due process.
The state did not address these concerns in responding to the suit and, according to the court, provided no admissible evidence of the “social harms” of polygamy.
This in some ways left the court to figure out their argument for themselves, hence the bizarre emphasis on Said’s “Orientalism” used to make the fundamental claim that the United States waged a “war” against the Church of Jesus Christ of Latter-Day Saints, one in which banning polygamy played a prominent role. The court argues, essentially, that racism was behind the banning of polygamy: “the social harm was introducing a practice perceived to be characteristic of non-European people—or non-white races—into white American society.”
In other words: banning polygamy was a way to get deviant white people to start “acting” white. The court goes on to cite a previous case upholding polygamy bans as a prevention of a “return to barbarism,” and condemns such “derisive societal views about race and ethnic origin.”
The accusations of racism form a major part of the beginning of the opinion, but the court ultimately incorporates them into a bigger legal argument. Because religious groups are protected under the Due Process Clause, the state has to have a rational basis on which to curb their freedom. The basis the court cites is that the state is racist, as noted above. Because the ban on multiple legal marriages regulates behavior that is actually sanctioned legally, polygamy, narrowly defined, remains illegal.
The key to the case is that the Browns are seeking only the legality of their living situation, not of all of their marriages. The facts of the case note that they do not have multiple marriage licenses–only one male/female couple is legally married–and that Utah has especially strict polygamy laws because of its history as a Mormon state (Washington required these laws to allow Utah into the Union). In exact terms, the “strictness” of the law comes from its ban on “cohabitation,” not just marriage. This is the provision the court has found unconstitutional.
The lawyers defending the Browns appear to see the case as something greater than a step forward for the freedom of fundamentalists to marry, however. The Browns’ attorney, Jonathan Turley, called the case a “victory not for polygamy but privacy in America.” It is an issue, the argument goes, that affects everyone’s right to live how they choose and with whoever they choose. It is another front in the fight against big government, as Turley’s affidavit argues.
This type of argument–which also rears its head slightly in the case with the citations to Lawrence v. Texas, the case that overturned all sodomy bans–will make the case lend itself to the “slippery slope” argument against same-sex marriage. Some will argue, the legalization of same-sex marriage indicates we are already seeing a move towards accepting polygamy. And, yes, Lawrence plays a prominent role in the argument in favor of unofficial polygamy: American adults have a right to do whatever they want to each other consensually in the privacy of their own bedrooms.
But even then, the court finds that “religious cohabitation does not qualify for heightened scrutiny under the substantive due process” (in other words, religious cohabitation is not as worthy a behavior of protection as sodomy). That argument obscures the true absurdity of this decision, however: the fact that it essentially argues that opposing polygamy is racist, even if all parties involved are white.
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Laura K. Donohue is a professor at Georgetown University Law Center and director of Georgetown’s Center on National Security and the Law.
The National Security Agency’s recently revealed surveillance programs undermine the purpose of the Foreign Intelligence Surveillance Act, which was established to prevent this kind of overreach. They violate the Fourth Amendment’s guarantee against unreasonable search and seizure. And they underscore the dangers of growing executive power.
The intelligence community has a history of overreaching in the name of national security. In the mid-1970s, it came to light that, since the 1940s, the NSA had been collecting international telegraphic traffic from companies, in the process obtaining millions of Americans’ telegrams that were unrelated to foreign targets. From 1940 to 1973, the CIA and the FBI engaged in covert mail-opening programs that violated laws prohibiting the interception or opening of mail. The agencies also conducted warrantless “surreptitious entries,” breaking into targets’ offices and homes to photocopy or steal business records and personal documents. The Army Security Agency intercepted domestic radio communications. And the Army’s CONUS program placed more than 100,000 people under surveillance, including lawmakers and civil rights leaders.
After an extensive investigation of the agencies’ actions, Congress passed the 1978 Foreign Intelligence Surveillance Act (FISA) to limit sweeping collection of intelligence and create rigorous oversight. But 35 years later, the NSA is using this law and its subsequent amendments as legal grounds to run even more invasive programs than those that gave rise to the statute.
We’ve learned that in April, the Foreign Intelligence Surveillance Court (FISC) ordered Verizon to provide information on calls made by each subscriber over a three-month period. Over the past seven years, similar orders have been served continuously on AT&T, Sprint and other telecommunications providers.
Another program, PRISM, disclosed by the Guardian and The Washington Post, allows the NSA and the FBI to obtain online data including e-mails, photographs, documents and connection logs. The information that can be assembledabout any one person — much less organizations, social networks and entire communities — is staggering: What we do, think and believe.
The government defends the programs’ legality, saying they comply with FISA and its amendments. It may be right, but only because FISA has ceased to provide a meaningful constraint.
Under the traditional FISA, if the government wants to conduct electronic surveillance, it must make a classified application to a special court, identitying or describing the target. It must demonstrate probable cause that the target is a foreign power or an agent thereof, and that the facilities to be monitored will be used by the target.
In 2008, Congress added section 702 to the statute, allowing the government to use electronic surveillance to collect foreign intelligence on non-U.S. persons it reasonably believes are abroad, without a court order for each target. A U.S. citizen may not intentionally be targeted.
Remember all those gun nullification bills that cropped up back in January? Last month, Kansas went ahead and passed one. Senate Bill 102, also known as the Second Amendment Protection Act, became effective in Kansas on April 25. And it has led to a high-level back and forth between Attorney General Eric Holder and Kansas Gov. Sam Brownback (R).
Kansas’ Second Amendment Protection Act declares, among other things, that firearms manufactured and owned in Kansas that do not cross state lines are not subject to any federal laws. It also makes it unlawful for government agents to try to enforce federal laws on firearms made and kept within state lines.
The day after the measure went into effect, Holder sent a letter to Brownback.
“In purporting to override federal law and to criminalize the official acts of federal officers, [Senate Bill] 102 directly conflicts with federal law and is therefore unconstitutional,” Holder wrote in his letter. “Federal officers who are responsible for enforcing federal laws and regulations in order to maintain public safety cannot be forced to choose between the risk of a criminal prosecution by a state and the continued performance of their federal duties.”
Citing the Supremacy Clause of the Constitution, Holder said that Kansas could not prevent federal employees and officials from carrying out their official responsibilities. The attorney general told Brownback that federal agencies, including the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the Federal Bureau of Investigation, would continue to enforce federal laws and regulations. Holder also warned that the government would take “all appropriate action, including litigation if necessary, to prevent the State of Kansas from interfering with the activities of federal officials enforcing federal law.”
On Thursday, Brownback responded.
“The state’s Second Amendment Protection Act, which expressly restates our commitment to these rights, was approved by wide, bi-partisan margins in the Kansas Legislature,” Brownback wrote to Holder, citing the bill’s passage margin in the state Senate (35-4) and state House of Representatives (96-24). “The people of Kansas have clearly expressed their sovereign will. It is my hope that upon further review, you will see their right to do so.”
The same day, Kansas’ Secretary of State Kris Kobach (R), who was one of Senate Bill 102’s co-authors, issued a much more aggressive statement responding to Holder’s letter.
“Holder’s understanding of the United State Constitution is incorrect,” Kobach said in the statement, obtained by Propublica. “As one of the co-authors of [Senate Bill] 102 and as a former professor of constitutional law, I ensured that it was drafted to withstand any legal challenge.”
Kobach accused Holder of making a “simplistic and incorrect claim” in his letter to Brownback.
“[Holder] rests his claim on the Supremacy Clause of Article VI,” Kobach said. “However, what he fails to mention is the basic constitutional rule that a federal law that exceeds Congress’s power has absolutely no ability to preempt a contrary state law.”
In his defense of the Second Amendment Protection Act, Kobach went far beyond it. He argued that over the “past 80 years,” Congress has used the interstate commerce power to regulate numerous subjects “that have nothing to do with interstate commerce—including firearms.” He also brought up the “Fast and Furious” ATF gun walking scandal, “the executive amnesty for illegal aliens the DHS Secretary Janet Napolitano launched in June 2012,” and accused the Obama administration of “repeatedly” violating the constitution over the past four-and-a-half years.
“With respect to any litigation,” Kobach said, “we will happily meet Mr. Holder in court.”
(h/t Propublica)
Eric Holder Letter To Sam Brownback
Eric Lach Eric Lach is a reporter for TPM. From 2010 to 2011, he was a news writer in charge of the website’s front page. He has previously written for The Daily, NewYorker.com, GlobalPost and other publications. He can be reached at ericl(at)talkingpointsmemo.com
