Tag Archives: courts

A Little Bit of Cynicism

Posted on by
Reply

The Supreme Court has agreed to take up, in its next term, the question of recess appointments and of what is a “recess.”  The DC Circuit had ruled, in the case being appealed, that certain NLRB appointments were unconstitutional and so invalid because they had occurred while the Senate was in session and not in recess.  That court also held both that an actual recess could only occur between the year-long sessions of a Congress and that a recess appointment could be made only for a vacancy that originated during that recess.

President Barack Obama’s Solicitor General, Donald Verilli, in his filing before the Supremes argued with a straight face that were the Court to uphold the DC ruling, it would restrict the president’s power.

To which I ask, “Yeah, and…?”

Verilli also argued with similar seriousness that upholding the DC ruling

…would deem invalid hundreds of recess appointments made by presidents since early in the nation’s history[.]

Umm, no.  It would deem invalid the appointments on appeal and possibly the appointments made under similar circumstances since the NLRB appoints at the start of 2012.  Verilli knows better.

Some Thoughts on the PRISM “Fact Sheet”

Posted on by
Reply

DNI James Clapper, over the weekend, declassified and released a Fact Sheet on the just revealed PRISM project.  PRISM is represented as an internal government IT program whose purpose is to gather

foreign intelligence information from electronic communication service providers under court supervision, as authorized by Section 702 of the Foreign Intelligence Surveillance Act….

under which

All such information is obtained with FISA Court approval and with the knowledge of the provider based upon a written directive from the Attorney General and the Director of National Intelligence.  In short, Section 702 facilitates the targeted acquisition of foreign intelligence information concerning foreign targets located outside the United States under court oversight.

As some might expect, I have some thoughts on the program as described in the Sheet.

The Fact Sheet first addressed in general terms the collections themselves.

The “provider” (Yahoo!, Facebook, et al.) is required to provide the data, but the source of the requirement is confusing to me.  FISA Court approval (I’ll elide how we know, given the secrecy of the Court and associated proceedings, that the Court approved, or under what parameters), but direction of the AG and the DNI, is my point of confusion here: is the requirement a Court order requested by the AG/DNI, or is it an order by the AG/DNI that is merely sanctioned by the Court?  In the open world of police work and prosecuting attorneys, neither the police nor the prosecutor can direct a man to submit to a search that has been sanctioned by a court.  The search has to be pursuant to a warrant explicitly issued by the court, albeit in response to request for one by the police/prosecutor—and supported by a showing of probable cause.

Next, must the AG and the DNI jointly request/order delivery of the information, or can either do this?

On the matter of targeting (there’s that term…) individuals:

The Government cannot target anyone under the court-approved procedures…unless there is an appropriate, and documented, foreign intelligence purpose for the acquisition (such as for the prevention of terrorism, hostile cyber activities, or nuclear proliferation) and the foreign target is reasonably believed to be outside the United States.

What level of proof must be offered the FISA Court to support an allegation of a foreign intelligence purpose?  Just the bald claim?  Probable cause (which must underlie that other search warrant)?  Some other standard?

Next, what is the definition of “reasonably believed?”

On the matter of oversight:

[T]he notion that…activities are not subject to internal and external oversight is similarly incorrect. Collection of intelligence information…is subject to an extensive oversight regime, incorporating reviews by the Executive, Legislative, and Judicial branches.

How do we know the degree or efficacy of the oversight?  It’s secret.  Note, though, that the dishonesty of the present administration only emphasizes this concern.  It’s government secrecy here that raises the question, not Obama “transparency.”

The Fact Sheet then moved on to the FISA Courts.

All FISA collection…is overseen and monitored by the F ISA Court, a specially established Federal court comprised of 11 Federal judges appointed by the Chief Justice of the United States.

It’s a Federal court whose judges are not vetted and approved by the Senate, as Constitutionally provided.  They seem, then, not to be Article III judges.  How, then can they be Federal judges?

No risks here.

On “targeting” approvals:

The FISC [FISA Court] must approve targeting and minimization procedures…prior to the acquisition of any surveillance information.

How do we know the limits are being honored?  It’s a secret process.

On those minimization procedures:

Minimization procedures [require that] the dissemination of information about US persons is expressly prohibited unless it is necessary to understand foreign intelligence or assess its importance, is evidence of a crime, or indicates a threat of death or serious bodily harm.

Whose judgment of necessity?  Is the FISA Court involved in this subsequent determination, or are these judgments left to the Intelligence community?

The Fact Sheet then moved to the other government branches’ involvement.

On Congress’ involvement:

The DNI and AG provide exhaustive semiannual reports assessing compliance with the targeting and minimization procedures.

How do we know the reports are truthful?  The underlying data are classified.  Moreover, given the blatant stonewalling of this administration concerning the provision of data and testimony concerning the IRS, Fast and Furious, the free press attacks, the Benghazi disaster, and so on, on what basis do we conclude the underlying data would be available to a classified Congressional hearing in a timely manner?  Note that the stonewalling of the present administration only emphasizes this concern.  It’s government secrecy here that raises the question, not Obama “transparency.”

On the Executive Branch leadership involvement:

The Executive Branch, including through its independent Inspectors General, carries out extensive oversight…which includes regular on-site reviews of how…authorities are being implemented.

We’ve seen the…effectiveness…of two of the Executive Branch’s Inspectors General: State’s vis-à-vis Benghazi and Treasury’s vis-à-vis the IRS.  Moreover, on what basis do we believe that IG reports on a classified operation or series of operations will be readily available, even to a classified Congressional hearing?

The Fact Sheet concluded with a short series of claimed successes under PRISM (without providing any substantiation for the claims).  Suppose, though, the claims are true.  See this for some thoughts on surveillance vs freedom.

In the end, though, it comes down to trust, since some activities must be carried out at the expense of individual liberty—those search warrants, for instance—and some activities must be done in secret in order to avoid tipping off the enemy.

Trust is a terrible thing to have wasted.

A Death Panel Overruled

Posted on by
Reply

A Death Panel of One, consisting of the woman who’ll be in charge of the death panel that will come into being with the full implementation of Obamacare.  HHS Secretary Kathleen Sebelius refused to intervene to overrule her own Department’s rule that would have left a 10-year-old girl to die because her chronological age left her too young to be eligible to compete for a lung transplant that could save her life.

Sebelius insisted she had no authority to waive the rule and so to allow the girl to compete with adults for an organ donor’s lung, never minding that the Congress that authorized her Department to have the rule assured her she did.

Sebelius insisted she didn’t want to play God and tear-jerkingly assured the House Committee on Education and the Workforce that she “can’t imagine anything more difficult” and that she “can’t imagine anything worse than one individual getting to pick who lives and who dies” while cynically ignoring the fact that by refusing to act, she was taking the “difficult” step of choosing “who lives and who dies.”

This Death Panel of One further justified her refusal by claiming

[T]there are about 40 seriously ill Pennsylvanians over the age of 12 also waiting for a lung transplant[.]

Never mind that the girl is at the top of the children’s list, so the other children’s status wouldn’t be affected, except through a slight improvement in their chances for getting a pediatric lung.  And that the girl wouldn’t go to the top of the adult’s list as a result of the rule’s waiver—she’d only be eligible to compete for a place in the list.

Fortunately, Federal District Judge Michael Baylson has overruled the Death Panel of One, at least temporarily, ordering Sebelius to waive the rule at least until 14 June, when he’ll have a full hearing on the rule.

But this is temporary, both for the 10-year-old and for Americans generally.  This is the sort of thing we can expect out of Obamacare’s more formal Death Panel, and too few Americans will have the resources to fight that one’s…decisions.

Holder’s Defense

Posted on by
Reply

On 15 May, Attorney General Eric Holder testified under oath before the House Oversight and Government Reform Committee that

With regard to potential prosecution of the press for the disclosure of material, that is not something that I have ever been involved in, heard of, or would think would be a wise policy.

Yet he had already been consulted concerning, and subsequently approved, a search warrant application to search the personal emails of an individual reporter (James Rosen of Fox News), a warrant that said in part

Because of the Reporter’s [Rosen’s] own potential criminal liability in this matter….

A three-page Department of Justice letter to the Chairmen of the House Judiciary Committee and that committee’s Subcommittee on Crime, Terrorism, Homeland Security, and Investigations is cynically unresponsive (quite aside from the fact that while the chairmen had addressed their concern on the “disconnect” to Holder, the latter didn’t deign respond, instead having an underling do so).

The letter devoted two and a half pages first to piously proclaiming Holder’s reverence for the role of a free press in American society and then to outlining the way getting warrants to search members of the press is supposed to work.  The underling then proclaimed that there was and is no disconnect between the facts of Holder’s testimony and the fact of the warrant’s accusation.  That’s it—just a bald, unsubstantiated pronouncement.  The underling offered not the least shred of evidence to support that claim.  The underling did, though, include this shocker in his penultimate paragraph:

At no time during the pendency of this matter—before or after seeking the search warrant—have prosecutors sought approval to bring criminal charges against the reporter.

DoJ and writers of the Left have made much of that word “potential,” saying that there was no prosecution after the fact, as though this non sequitur eliminates any potential.

Yet Holder did not testify “with regard to prosecution;” he testified explicitly to its potential.  And the warrant he’d already approved at the time of his testimony spoke explicitly about that potential.

It’s clear that Holder still has some tap dancingexplaining to do in order to reconcile his sworn testimony with the content of the search warrant he’d approved prior to his sworn testimony.

But there’re an additional couple of questions in my mind that goes to Holder’s fitness as the US’ chief prosecutor.  What kind of prosecutor accuses a man of criminal activity—that warrant—in order to obtain a search warrant while, at the time of the accusation, having no intent of prosecuting that man should the warrant produce the relevant evidence?

Did Holder lie to the judge in his warrant—he didn’t consider the reporter to be “potentially” criminally liable at the time?  Related to that, is it normal DoJ practice to deliberately mislead a judge with such ruses in order to get a warrant to conduct a search?  And: if the warrant is unobtainable without such shenanigans, how legitimate can the warrant be?

The DoJ letter can be read here.  The Rosen search warrant can be read here.

Some Later Thoughts on Obama’s Counterterrorism Speech

Posted on by
Reply

President Barack Obama had this to say, also, in that…speech:

We unequivocally banned torture, affirmed our commitment to civilian courts, worked to align our policies with the rule of law, and expanded our consultations with Congress.

Let’s see how he did that:

He banned interrogation techniques that produced results, after torture had already been banned for years.

He’s been pushing for five years to try terrorists and other illegal combatants as common criminals and to try Guantanamo Bay Detention Camp in New York courts or to release them outright.

He interrupts interrogations in progress in order to read the prisoner his Miranda “rights.”

He had his Attorney General drop a voter intimidation case involving the New Black Panthers and their white voter victims after the particular NBP miscreants had pled out.

He’s done nothing material about his DoJ’s program of running guns to Mexican drug cartels.

He’s had his HHS Secretary “encourage” fund “contributions” to his federal health insurance exchange from the insurance companies she regulates.

He’s doing nothing material about his Treasury Department’s IRS (which he falsely claims is an “Independent Agency”) program of targeting Americans and groups of Americans of whom he disapproves for the special treatments of tax audits, invasion of their donor lists, deliberate and prolonged delays on finalizing their tax exempt status applications.

He’s actively covering up his and his State and Defense failures in the run-up to the Benghazi terrorist attack in which an American ambassador and three men attached to him were murdered, their failures during the attack, and their failures in the aftermath.

He’s doing nothing material about his DoJ’s assault on our free press via secret seizure of phone records, emails, and obtaining search warrants by falsely accusing individual journalists of criminal activity.

He’s played a couple of rounds of gold with the House leadership and invited them to dinner, and then he’s castigated them for not kowtowing to him and giving him everything he wants.

That’s a powerful alignment.