Category Archives: Courts

What a Concept

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A legal, permanent resident immigrant with a prior criminal record, has been ordered deported, and the Supreme Court has upheld the deportation order.  Because it’s the law.

Writing for the Court, Justice Brett Kavanaugh had this [emphasis added]:

Removal of a lawful permanent resident from the United States is a wrenching process, especially in light of the consequences for family members. Removal is particularly difficult when it involves someone such as Barton who has spent most of his life in the United States. Congress made a choice, however, to authorize removal of noncitizens—even lawful permanent residents—who have committed certain serious crimes. And Congress also made a choice to categorically preclude cancellation of removal for noncitizens who have substantial criminal records. Congress may of course amend the law at any time. In the meantime, the Court is constrained to apply the law as enacted by Congress.

The law does matter. At least to some of us.

Unsurprisingly, the four liberal Justices, voted against the Court’s ruling. Which is entirely consistent with their view that laws don’t matter when they’re in the way of the Justices’ personal views of social needs.

The case is Barton v Barr, and it can be read here.

Where Were the FISA Court Judges?

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DoJ’s Inspector General is finding yet more, yet more rampant, miscreancies in and done by what used to be our nation’s—the world’s, even—premier law enforcement agency.

DOJ’s new assessment indicated that FISA problems were systemic at the bureau and extended beyond the Page probe. In four of the 29 cases the DOJ inspector general reviewed, the FBI did not have any so-called “Woods files” at all, referring to documentation demonstrating that it had independently corroborated key facts in its surveillance warrant applications. In three of those applications, the FBI couldn’t confirm that Woods documentation ever existed.
The other 25 applications contained an average of 20 assertions not properly supported with Woods materials; one application contained 65 unsupported claims. The review encompassed the work of eight field offices over the past five years in several cases.

The IG went on.

“As a result of our audit work to date and as described below, we do not have confidence that the FBI has executed its Woods procedures in compliance with FBI policy,” the DOJ IG wrote in a memo today [31 Mar] to FBI Director Christopher Wray.

That’s damning enough, but the problem is much wider than just a failed FBI.  The judges sitting on this Star Chamber FISA court knew those materials needed to be present, yet they approved the warrants in all of those flawed, to the point of dishonesty, warrant applications. Every single one of them.

This is another demonstration that this secret court cannot be fixed; it must be eliminated.

Full stop.

The Threat to our Court System

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…was made plain last week with Senate Minority Leader Chuck Schumer’s (D, NY) naked threat against two of our Supreme Court Justices if they don’t start ruling the way Progressive-Democrats dictate.

Schumer’s threat follows threats by Senator Sheldon Whitehouse (D, RI) and his cronies in the Senate to stack the Supreme Court if that body didn’t start ruling the way Progressive-Democrats dictate.

These follow long-standing “liberal” judges’ and Justices’ utter disregard for our Constitution. Such disregard includes district judges presuming to issue nation-wide injunctions—arrogantly reaching into the jurisdictions of other judges’ districts, other appellate court districts.

It includes Justices like Thurgood Marshall whose mantra was an even more arrogant attitude of ruling wholly independently of the law and then demanding the law catch up

It includes the attitude of current liberal Justices like Ruth Bader Ginsburg, who considers our Constitution to be a document that lives through and is alterable by rulings from her judicial bench. She contemptuously ignores the fact that our Constitution actually lives through its Article V and is alterable solely by our Constitution’s owners, We the People.

Keep the power balance of the Senate—which must confirm or reject all judges and Justices—and the party residing in the White House—which originates all judicial nominations—in mind this fall.

(Double) Standards of Protection for Government Officials

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Senate Minority Leader Chuck Schumer (D, NY) threatened two Supreme Court Justices if they didn’t rule his way on a Louisiana law requiring doctors to have hospital admission privileges as a prerequisite to doing abortions. (The case actually has little to do with abortions; it concerns whether third parties—doctors here—can sue on behalf of others, especially when those others have suffered no harm from the matter.)

Schumer stood on the steps the Supreme Court building in front of a noisy protest crowd and, pointing back at the Supreme Court building, said [the quote below starts at about 0:45],

I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.

The lack of “Justice” honorific might seem merely rude on Schumer’s part, but he omitted it to emphasize the directness and seriousness of his threat. The smirk on his face as he took in the crowd’s noisy approval illustrates the matter, too.

Schumer, of course, denied through his spokesman (apparently he didn’t have the courage to speak directly), that he was threatening the Justices, insisting that he was talking political retribution for Republican politicians. The video at the link demonstrates the lie of that. Schumer, in one paragraph of his speech was clearly addressing—facing, pointing at, calling by name—two Justices. It wasn’t until the next paragraph that he addressed—facing his crowd, no pointing, no Republican addressed by name (not even his chiefest opponent, the Senate Majority Leader so instrumental in getting those Justices confirmed)—Republican politicians.

On the floor of the Senate Thursday, Schumer doubled down on his threat. First, he lied about making a threat; his words weren’t intended that way, he claimed. He’s from Brooklyn and Brooklynites speak in strong language, he said—as if being his habit makes it all right. Then he tried to downplay his words by insisting that Republicans are creating the situation with their politics and with their “manufactured outrage” over Schumer’s remarks.

Then Schumer, still on the floor of the Senate at the end of his doubling down, refused even to apologize to the Justices. He just yielded back his time.

The Wall Street Journal, in its op-ed on the matter, mentioned President Donald Trump’s call for Justice recusal in emphasis of the seriousness of Schumer’s escalation of the Left’s political rhetoric:

Mr Trump recently tweeted that liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor should recuse themselves on cases involving his Administration.

It’s much more than this, though.  Trump didn’t threaten Ginsburg and Sotomayor, individually or together, if they didn’t comply. Not tacitly, especially not as nakedly as Schumer threatened Gorsuch and Kavanaugh.

The Secret Service gets after folks who threaten Presidents. Don’t Justices—on the same government hierarchical level as Presidents—deserve the same protection? Apparently not, when it’s a Progressive-Democrat who makes the threat.

Close

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…but no cigar.  Senator Mike Lee (R, UT) has some thoughts on fixing the  Foreign Intelligence Surveillance Act and its secret FISA Court.  He’s on the right track, but his ideas fall short.

Lee wants to fix the FISA Court and tighten the parameters under which it operates. This Star Chamber cannot be fixed; it must be disbanded and the sections creating and empowering it must be rescinded from the FISA altogether.

There remains a need to guard against and to respond to espionage and interference efforts, and there remains a need for that response to involve investigations of American citizens who might be involved in those foreign assaults.  There remains a need to keep many of our responses and investigations secret—for a time—so as not to tip off the targets of our investigations, whether they’re foreign or American.

Counterbalancing that is the even more crucial need to protect Americans’ individual liberties, including those being investigated.  Especially the latter need protection; they’ve not been shown to have done anything wrong, but public suspicions would ruin the reputations of those actually innocent.

Our present Article III courts already are well-versed in handling secret warrants where necessary for domestic criminal investigations and for sealing records until it’s useful to release them or after sufficient time has passed that their release will not harm an ongoing investigation.  FISA warrants can be handled here.

Many of Lee’s other ideas, with some adjustments, will work just fine in a sealed Article III court.

He wants to expand the role of an amicus in FISA warrant applications beyond warrants involving a novel or significant interpretation of law.

amicus should advocate for the privacy and civil liberties of the person targeted.

The role needs to be expanded further. This new amicus should overtly act as Devil’s advocate and seek to expose weaknesses in the warrant application with a view to getting the application denied. The target legitimately cannot be present, yet in most domestic criminal cases, the target has opportunities to contest the warrant, even if only after the fact.  Such a contest needs to be present with FISA warrants, as well.

Lee wants relevant agencies to be required to provide all information in their possession as part of the application, including any exculpatory evidence. The FBI Director and the Attorney General should be required to certify that this has been done, and there needs to be heavy sanctions applied to the agents, the Director and the AG if this requirement has been found, after the warrant’s submittal, to have gone unsatisfied. It’s almost never enough merely to punish the workers directly responsible; too often they acted improperly because they were actively allowed to or because they were permitted to by too lax supervision.

It’s critical that we take these kinds of measures in response to the failures of and abuses from the present FISA setup so that this sort of violation of United States citizens never happen again.