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Judge’s Decision Striking NSA Program Will Not Stand

December 18th, 2013 - 6:47 pm

Think for a moment about judicial confirmation hearings. Pro-abortion Democrats routinely elicit from pro-life nominees a commitment to follow Roe v. Wade, regardless of the nominee’s legal and moral objections to it, because it is binding Supreme Court precedent and thus the law of the land. The foundation of the rule of law is not just that the executive branch must follow valid congressional statutes; it also requires that inferior courts adhere to the rulings of superior courts, even if the lower court judge believes those rulings are flawed. In the judicial branch, only the Supreme Court has the authority to overturn Supreme Court rulings. Judge Leon has no such authority – and he well knows it.

A Telecom’s Records Are Not Your “Person, House, Papers, Or Effects”

Leon’s ruling is profoundly ill-conceived. To say that he flouted a controlling Supreme Court precedent is not the half of it.

Leon concedes that the plaintiffs’ challenge to the NSA program is an “expectation of privacy” case, not an “intrusion on a constitutionally protected area” case. This inches upon the stubborn fact I’ve repeatedly raised – a fact dismaying to libertarians posing as faithful constitutionalists: the Fourth Amendment, as originally understood, does not protect anyone’s abstract “expectation of privacy.” Instead, it states quite concretely that the American people have a right to be secure against unreasonable searches and seizures “in their persons, houses, papers, and effects” (emphasis added).

Persons, houses, papers, and effects are the four “constitutionally protected areas.” There are no others. Like it or not, the collection and perusal of business records that are not your property – that are actually the property of your telephone service provider, even though they pertain to your usage of the service – are in no way a search or seizure of your person, house, papers or effects.

Anyone claiming to be a “constitutional conservative” should admit that, if we were dealing with the original Fourth Amendment, the case would be over. The reason it is not is “expectation of privacy,” a progressive doctrine the Supreme Court conjured up in the 1960s. Eventually, it dramatically expanded the Fourth Amendment’s carapace. No longer would courts merely enforce from the objective concept of trespass against private property; now the Constitution would be said to reflect the evolving, eccentric, and often contradictory whims of judges about what aspects of life ought to be private.

Here, it is necessary to pause and add that faithful constitutionalists freely concede there is nothing wrong with protecting our legitimate expectations of privacy from a prying government as they evolve with time and technology. To the contrary, it is vital to liberty that those expectations be protected. In our constitutional system, however, that protection is supposed to be added by the people’s representatives in Congress. The role of the judiciary is to safeguard the constitutional guarantee – to protect our persons, houses, papers, and effects from unreasonable searches and seizures. It is not to make up a new Fourth Amendment as we go along, under the guise of an “expectation of privacy” harbored by some supposedly objective person (namely, the judge who happens to catch the case).

The NSA program is a creature of statute that addresses privacy concerns which, while entirely legitimate, are not constitutionally protected. It permits the collection of information but imposes safeguards that severely limit what the government may do with that information. Reasonable minds can and do differ on whether those privacy safeguards are adequate. But if they are to be modified – or if the program is to be scrapped because its security benefits are outweighed by its privacy costs – that ought to be done by Congress, not by judges pretending that the Fourth Amendment says something it does not.

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Top Rated Comments   
Andrew:

" Had this procedure been in effect before 9/11, it might have tipped off investigators,"


Might have? Excuse me if I feel a bit underwhelmed. There were more than enough clues to have stopped the 9/11 bloodbath. We don't need any more Jamie Gorelick types "protecting" us. There is no need to subvert the Constitution to be safe.
31 weeks ago
31 weeks ago Link To Comment
The point Andy's article is sound. Judicial "activism" is not just "active"...it's radioactive. We feel the effects years after and it makes us weak and vulnerable. It usurps a power not consistent with checks and balances built into our system to avoid abuses.

So, I take no issue...none at all..:with Andrew's instincts. They are spot on as far as they pertain to improper judicial "activism". Jurist nullification is no better than jury nullification, in many ways, worse...for our system of justice.

However... a government that spies on its reporters, that sics the IRS on political opponents, that blames an innocent man for terrorist murders in Benghazi, rousts him at midnight, alerts its Propaganda Machine to broadcast him being perp walked into a jail cell, from which he is still being held.

So, what is to say that this administration that lies with impunity, shreds the Constitution, neuters our representatives, circumvents checks and balances, has IRS department heads plead the fifth because they would tend to incriminate themselves in conspiracies to commit felonies and abuses of rights, has a DOJ filled with attorneys who deny equal protection to classes of people based on race, and trains its military to treat Bible-based followers as terrorists...what is to prevent such a lawless government from taking the "mere" information of their "enemies"...who they talk to and for how long...and apply the guilt by association treatment they reserve for ...oh, let's say The Tea Party.

Or Catholics, Orthodox Jews and Evangelical Christians. And, set them up for some "extra" attention.

If this administration had done none of the myriad lawless and Constitution shredding acts, perhaps the sense of danger would be less stark. But the Dept. of Justice hired EVERY SINGLE ONE ...attorneys who show proclivities to deprive...not protect rights of a certain class of persons.

We indeed face threats from those who wish to dominate or destroy us who are outside our shores. But, perhaps the greater danger comes from those who want the same...who are inside...very inside.

We can wait for the wheels of Washington legislation move at glacial speed to stop them. Because that's the proper venue, playing by the rule book with which we are being constantly beaten to death.

A Hobson's Choice for strict adherents and believers in our Constitution.
31 weeks ago
31 weeks ago Link To Comment
There is a much better article on the Anti-American NSA at JewishWorldReview [http://www.jewishworldreview.com/1213/napolitano.php3#.UrLOtCdpnGw]

"The NSA was emasculated before Leon. Gone were the lies of Director of National Intelligence James Clapper, who stated under oath that the government does not spy on Americans. Gone was the bravado of NSA boss Gen. Keith Alexander, who claimed initially under oath that his spies stopped 52 terrorist plots and then mysteriously corrected himself and said they really stopped just three, but declined to identify the three. Gone was the if-we-don't-do-this-we-all-will-die argument. Gone was the if-you-have-nothing-to-hide-you-have-nothing-to-fear nonsense that congressional NSA apologists have advanced.

In place of the political claptrap is the court's finding that not only is the NSA spying unconstitutional, but it doesn't work. After hearing the NSA state its case, Leon wrote, "I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism." And he added an admonition that it doesn't help the NSA's case to be less than candid with the judge."
31 weeks ago
31 weeks ago Link To Comment
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All Comments   (72)
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The article was logically consistent. My question is why don't I have a reason to expect privacy from those with whom I contract for services? If I do (and I haven't read my AT&T contract), then how can the service provider simply be run over by the government and forced to provide my metadata? Further, have we not learned that the government is, in fact, storing the content of all of the telephony traffic?
30 weeks ago
30 weeks ago Link To Comment
This might actually be the worst article I've read on PJM. Mr. McCarthy, you are nothing but a statist. You put statue above the constitution and cannot be trusted to defend either.
30 weeks ago
30 weeks ago Link To Comment
As I read the article, I was thinking, "wonder what the comments will be?" because I wasn't feelin' it from good ole Andrew. He didn't make his case. Big government has NEVER been able to scale back on knowing more about it citizens which is how Goerge Orwell was able to write "1984". Even with the administration I trusted, I don't like this program and under the Obama administration it is the happy pill on steroids. Bush gave the NSA all the power in the world when the Patriot Act was passed. It was a "Get out of jail free" card for the NSA. Perhaps Snowden put some of our military secrets in jeopardy, I don't know, but I do know that the power of the NSA that he revealed was what we all expected. Mr. McCarthy, your argument looses big time this time.
30 weeks ago
30 weeks ago Link To Comment
my roomate's step-sister makes $61 an hour on the computer. She has been fired from work for seven months but last month her payment was $12468 just working on the computer for a few hours.
why not check here ..... http://www.jobs59.com
30 weeks ago
30 weeks ago Link To Comment
Andy says, "only your number is in the NSA’s database, not you."
He then says," the details about, but not the content of, communications – do not implicate the Fourth Amendment. If the Fourth Amendment is not implicated, then the government’s collection and perusal of these records does not violate the Constitution, case closed."

While I too agree with Andy from a purely technical point of view, it just does not seem exactly correct. He says the content is not collected - how the hell does he know? HOW DO WE KNOW - BECAUSE THE GOVERNMENT SAYS SO?

At this point it is logical to assume the US government (and maybe others) have the ability to harvest every byte of digital data produced on the entire planet (by any electronic means), and then stored for up to 100 years. That would be a logical assumption at this point.
Further, how many supreme court rulings that stand as law right now - cough-John Roberts-cough - that are prima-fascia UNCONSTITUTIONAL?

Of course I am just a kook who thinks the constitution does not authorize SSI or Medicare, so there's that.
31 weeks ago
31 weeks ago Link To Comment
Andrew you argument is based on a false premise. First we must establish where the Court gets it powers to protect Government from the crimes or Constitutional violations they commit. By your logic of only a very small percentage of the information would be harmful to the individual.

Therefore it might be OK if one murders just one person out of the 300+ million in the US? That is a unjust premise just like your presentation is made without establishing a proper foundation.

The courts usurped powers they did not have under Article III in Marbury V. Madison and McCulloch V. Maryland, and then using these powers, have given the Legislature and the Executive powers not included in the four corners of the Actual Constitution. By allowing usurpation, America is now not a LIMITED CONSTITUTIONAL REPUBLIC - we are now acting like a DEMOCRACY! Majority rule is now writing and enforcing laws that clearly are unconstitutional, if you limit the Constitution Rule- By- Law to the exact language within the four corners of the Compact.

IN 2013 and we are clearly operating under Majority Rules or a Rule-By-Man system. The Executive issues orders to stop enforcing laws, and also, to enforce Executive orders that are not constitutional or within the powers of that office. The Legislature makes laws that have no foundation inside the four corners, by using the clauses - as the courts did in the above referenced cases. The nine Black Robes of the Supreme Court invent whatever they like as evidenced by the number of 5 to 4 OPINIONS - either something meets the LIMITS of the actual words - or it does not. How can Lawyers consult, argue, and review case law precedent and then just issues’ findings that are not connected to the actual FOUNDATION of our laws - the CONSTITUTION?

[Example: the Health Care tax that the Supreme Court invented to save Obamacare]

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” ~ James Madison.

(1807-1815) The Writings of Thomas Jefferson-Part 1 Beginning on Pg 53.

"DEAR SIR, While Burr's case is depending before the court; I will trouble you, from time to time, with what occurs to me. I observe that the case of Marbury v. Madison has been cited, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law."

"I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; &: I think the present a fortunate one. because it occupies such a place in the public attention. I should be glad therefore. if, in noticing that case you could take occasion to express the determination of the executive, that the doctrines of that case were given extra judicially & against law, and that their reverse will be the rule of action with the executive."
31 weeks ago
31 weeks ago Link To Comment
Very true, because most people are unaware of this FACT!


Yes, America is Still in an Official State of Emergency Global Research, February 11, 2010

http://www.globalresearch.ca/yes-america-is-still-in-an-official-state-of-emergency/17545
31 weeks ago
31 weeks ago Link To Comment
"Anyone claiming to be a “constitutional conservative” should admit that, if we were dealing with the original Fourth Amendment, the case would be over."

Certainly it would be over, the constitution prohibits general warrants.

"the program is likely to be neutered."

I hope so, and the people who administered and abused it, jailed.

There's no excuse for anything else.
31 weeks ago
31 weeks ago Link To Comment
Mr. McCarthy, are you really so stupid as to not see the inherent, abject, irreconcilable contradiction in these quoted sentences of yours? Or is it that you think we are stupid enough to buy it as written?

"Significantly, the metadata collected and stored by the NSA does not include identifying details, such as the names and addresses of the interlocutors. Essentially, the government is collecting the phone numbers involved in, and the duration of, the communications. The purpose is to connect the phone numbers and calling patterns of suspected foreign terrorists with phone numbers and calling patterns used in this country."

Phone numbers are identifying details. They have to be, or they can't serve the purpose you've just described.
31 weeks ago
31 weeks ago Link To Comment
Maybe if you fight for this decision to stand instead of prophecying its doom - maybe it will stand, Mr. McCarthy.
I think too many Americans have caught the disease 'hopelessnessitis'.
But I guaranty you it's not a condition that Vince Lombardi ever suffered from.
31 weeks ago
31 weeks ago Link To Comment
Where did you get the idea he regrets the supposed nullification of this decision?

He's vile enough to like the idea.
31 weeks ago
31 weeks ago Link To Comment
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