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Judge’s Decision Striking NSA Program Will Not Stand

December 18th, 2013 - 6:47 pm

The judge next purported to distinguish Smith as merely deciding that the installation of a pen register did not constitute a “search” under the Fourth Amendment. (A pen register is a device attached to a phone line that records numbers dialed, numbers dialing in, and the duration of calls.) This hair-splitting gets him nowhere: what made the installation not a search was the fact that there was no trespass on the target’s property and no expectation of privacy in metadata. Exactly the situation obtains in the NSA case.

Finally, unable to pound the law, Judge Leon pounded the table. He posed a rhetorical question that surely wowed them at the New York Times but won’t sway a conscientious appellate court:

When do present-day circumstances – the evolution of the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies – become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent like Smith simply does not apply? The answer, unfortunately for the Government, is now.

Actually, the answer, unfortunately for Judge Leon, is when the Supreme Court says so. And if you think I’m wrong about that, imagine what our friends at the Times would say if a district judge instead asked:

When do present-day circumstances – the evolution of medicine’s life-preserving technology, our knowledge of fetal development and fetal pain, and the increasingly obvious humanity of the unborn child from the earliest stages – become so thoroughly unlike those considered by the Supreme Court forty years ago that a precedent like Roe simply does not apply?

Somehow, I suspect the judge posing that question would not be a candidate for this month’s Law Journal centerfold.

Conclusion

The viability of the NSA’s metadata program hinges on questions of policy, not law. Does it materially improve our security from terrorist attacks? Even if it does, should a government that notoriously abuses its powers be trusted with this one – are there in place enough effective safeguards, independent of the executive branch, that we should tolerate the immense potential for abuse?

I happen to believe the answer to both questions is yes, but that is beside the point. The Obama administration has failed to give compelling, affirmative answers to these questions. Without effective presidential leadership that inspires public confidence and assuages public fears of governmental abuse, the program is likely to be neutered. If that happens, it will be tragic – we will be much more vulnerable to attack and we will have achieved very little in the way of real privacy protection. But at least it will be our choice – Congress and the president legitimately changing the law to reflect public sentiment.

That is the responsible, accountable way to change the law. Asking the courts to do our heavy lifting for us by rewriting the Constitution is not.

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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
All Comments   (72)
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?
29 weeks ago
29 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.
29 weeks ago
29 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.
29 weeks ago
29 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.
30 weeks ago
30 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."
30 weeks ago
30 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
30 weeks ago
30 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.
30 weeks ago
30 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.
30 weeks ago
30 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.
30 weeks ago
30 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.
30 weeks ago
30 weeks ago Link To Comment
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