DOJ lied to Supreme Court to avoid judicial review of warrantless surveillance
documentcloud.org
documentcloud.org
"We believe that a formal notification to the Supreme Court of the government's misrepresentations in the case--both relating to its notice policy and relating to its practice of 'about' collection under Section 702 of the FISA Amendments Act--woulcl be an important step in correcting the public record and would be in the interests of the public as well as of the Administration and the Supreme Court."
http://www.justice.gov/osg/briefs/2008/3mer/2mer/2008-0681.m...
Additional details: http://thecaucus.blogs.nytimes.com/2012/04/24/justice-depart...
1) There's a such thing as decorum.
2) One step at a time. "The mill of justice grinds slowly, but it grinds exceedingly fine."
2) When it comes to powerful people, it grinds so slowly and so fine that you can't even see the result.
It was an incredible thing to watch. The formality of the occasion, the power of the judge, the power of the system he represented, the normal range of courtroom expression: they all set a context in which a slightly raised eyebrow was more powerful than the loudest shout, that arch deprecation was more cutting than a raft of verbal abuse.
I expect it's the same deal here. These are US Senators asking, and they're basically, in polite language, making direct accusations of lying to the Supreme Court. I suspect that they, mindful of the co-equal status of the government branches, very rarely say things like this. So when they do, everybody knows that they mean it.
http://abovethelaw.com/2013/09/who-wants-to-watch-a-prosecut...
Huh?
They wrote a letter. With polite suggestions.
I like the letter, and I'm happy to see many more letters like this. Heck, I might write my own letter. But you are spinning this.
Play out the whole process of those hearings with teeth and see how long it takes and the chance of anything happening as a result. Normally and typically results in just outrage that plays well with voters and makes them look like they are doing something. Laws are not passed in hearings. Not to say that something can't or won't become of it. But the stakes are high here and if ("if") there is something expect it to take time and energy and involve a big back and forth.
I love both my Republican and Democratic friends (the two main political parties in the states), but I find their memory of how the political system actually works highly fluid.
I'm all for Rand Paul doing similar grandstanding. He's written letters, made speeches, and generally mucked about. Not much has changed though. He gets away with this because 1) His party is weakly held together so party discipline is light, 2) His party is out of power so they can really throw whatever mud they want and it doesn't matter, and 3)He can do his own thing and party leaders can kind of shrug and say "Well. There goes Rand!" while winking and smiling -- the message being: he's not actually doing anything.
Most of these statements are not true about the Democratic senators involved here, so they're on a shorter leash. Right now, as long as folks like raynier gush on about how great they are and the rest of the party pays little attention, there's little downside. But if this were to get anywhere near seriously damaging the administration, the party whip would politely take them aside and have a word with them about committee appointments. (That's his job). So right now, just like with Paul, I'm applauding and thinking this is great. But just like with Paul, I'm not naive enough to think this amounts to much more than the Democrats trying to take both sides of the issue at the same time.
Side note: if you'd like to have a fun history lesson, spend a day googling various senators and the letters they've sent. Now look at what they actually accomplished.
I had an interesting experience when I was just out of college (long time ago) and the power company cut off our power and damaged some machinery. I complained and the utility was totally accommodating of my complaints and it seemed as if for sure they were going to do something. After all they agreed with me. They were really nice and assured me I would get compensated.
So I had nothing to fight against after all they appeared to be on my side. And each time I followed up it was just a bit more time.
Well, as time went they actually did nothing other than importantly give me the impression they would do something. [1] They inserted as much time as possible between the event and doing something as they could. After it all played out I had lost my steam because the whole fight didn't seem as important as it did on the day it happened. And I dropped it. But learned a valuable lesson in terms of human behavior and how to divert anger by agreement.
[1] Happens with collecting bad debt as well (when you are owed money is what I mean). Customer strings you along maybe sends a bit of money or maybe nothing but always seem as if the big payment is right around the corner. Them bam! Sorry not paying anything.
In actual practice this is a form of grandstanding.
If you've ever tried to enlist the help of a legislator they will do all sorts of things that on the surface appear to have teeth.
In the end if they can't get a majority to agree with them nothing happens.
They will write the bill but if they can't get the votes your petty little issue dies.
But they always put on a good show. The question is whether they are willing to go to the mat for you and/or make a trade (of something someone else thinks is important) to get the votes.
Also whether the press runs with it and thinks it is important which depends on not only whether the press thinks it's important but whether they can see that others who are important also agree.
Also, this is the most important part of this entire scenario - not the spying, not the secrecy, not the internets, but the executive overreach. The use of spying and secrecy to gain tremendous power (including over the other branches of government). The ability for the executive to grab enough power to coopt the legislature and deceive the courts - and get away with it. Were that to have actually come to pass little else would have been important. It's intriguing and relevant (for us) that this overreach was made possible by the knowledge gap generated by rapidly advancing technology - 'trust us, we'll get the bad guys with this newfangled technology stuff like twitters and facebooks'. But in the end, it's just a power-grab.
while it make the events relevant to this audience, the technology involvement is a red-herring here as history is full of examples where executive branch was able to perform the power-grab utilizing the technology of the time, frequently an absolute power-grab and with wide popular support in the name of "the greater good" as perceived at the time by the populace. In its current form technology allows to minimize direct violence required to perform the grab, it allows to stretch and smooth the shock of the transition.
Of course, I disagree that the purpose of TIA is security, and I also disagree that it is even successful, but the real issue at hand is beyond that, and is about how the debate was had and who was involved. There was no public debate, and any that did leak was tightly brought under control (with NSL's etc). This is an affront to the democratic process imho, but even if one were to argue that our representatives were involved, I would say there has been a stratification of the congresspeople, so that only a select few people on a select few committees even get to participate, and even then the ones who do are unable to grasp the subject matter fully. Of course no staffers get to see it either.
With the knowledge of how intel agencies work, and more specifically, the contact sport of politics in the beltway, I would also venture to say that even if a fairly principled rep did make it on a relevant committee, though would quickly be brought back under control via the standard methods.
I won't get off too far into this rabbit hole, lest I am accused of conspiracy theory, but I truly think the system of checks and balances is not only crumbling, it is in ruins. Even worse, a facade is being put up to cover it up.
Are you simply referring to "terrorist" acts of violence, or a more abstract tension between traditional states and distributed transnational organizations?
We are the problem, we keep electing people who support this crap.
If you look at American policy, it's closely representative of the views of typical voters. High levels of welfare spending for the middle class (i.e. Social Security and Medicare?) What could be more representative of a voting population that consists to a large degree of middle aged middle class folks nearing retirement who won't be burdened with the bill? Foreign wars? How many liberals urged Obama to intervene in Syria even after their ostensible opposition to Iraq? How many liberals supported arming Syrian rebels after complaining for years about arming anti-Taliban forces in Afghanistan? On either side of the aisle, Americans are broadly willing to resort to military solutions. The drug war? I grew up in the 1990's and remember being surrounded by suburban soccer moms who thought drugs were more evil than Hitler. The drug war was built on a solid coalition of social conservatives and Reagan Democrats that's only now chipping at the edges as a younger generation becomes parents themselves.
First past the post has notable theoretical weaknesses, but that weakness tends to be entrenching the voice of the mainstream consensus, to the exclusion of minority viewpoints.
Americans love to bitch about the government, but very few would change anything in a substantial way. They argue over issues at the edges because that's the only thing they disagree about. They might disagree with the amount of penalty BP should receive, but people on the right don't want to get rid of the regulatory regime surrounding oil drilling, nor do people on the left want to abandon drilling entirely.
The problem with democracy as it exists today is that policy also has a massive effect on public opinion - i.e. propaganda is effective. So it's not an effective check on power.
The trouble is not spying itself, it's that the cost of spying has become so low that states choose to spy everything by default. We need to revert to a state where all communications can be eavesdropped, but where there is non-negligible computational cost for doing it. One way might be to switch to encrypted communications for everything, but using keys that are strong enough to provide protection from wholesale dragnet surveillance, but weak enough for targeted brute-force decryption.
This crap would stop pretty fast.
The U.S. hasn't convicted someone of treason for more than half a century. Even John Walker Lindh, who was literally fighting with the enemy against the U.S., was not prosecuted for treason.
Its probably because of the narrow definition of treason written explicitly into the Constitution [1].
[1] http://www.law.cornell.edu/constitution/articleiii#section3
Why, so you can stop President Obama being elected for a third term?
To me as an outsider, this is a puzzling part of the US political system. The President has a huge amount of concentrated power within one branch of government, yet approximately half the time, the President of the day is effectively a lame duck with nothing to lose by behaving almost any way they like. Other parts of the government can make that President's job harder, but short of impeachment everyone is basically stuck with whoever it is until their time is up.
I increasingly feel that giving the electorate an absolute power of recall if an elected representative angers enough people during their term would change politics for the better at almost any level. Otherwise, any term of office that is sufficient for reasonable medium- to long-term planning is also sufficient to allow serious damage to be done with relative impunity if the wrong person won the election but the voters only learn that after the fact.
As a side benefit, this also balances the tendency for major elections to be fought on a tiny number of headline issues, with little if any incentive to represent the electorate's interests in all the other significant-but-not-dominant areas, because if you annoy too many small groups of the population, collectively they can become powerful enough to trigger a vote.
I don't think your version of "serious damage" from this issue matches most voters. Even if this were a parliamentary system where sufficient public outcry could force new elections, or a "do over" recall was available (a terrible flaw in the state constitutions where it exists, IMHO), you'd still not be getting the U.S. administration you seem to want. You need to convince the public and then win elections, that's how change happens.
This lack of direct motivation is a systemic weakness in almost any electoral system that involves fixed terms of significant length, and it applies more generally than just the need to choose appropriate subordinates. What you described just happens to be one ineffective case that is relevant to the current discussion.
Look at it this way: how much do you think the average person would pay to get rid of the NSA program?[1] You think it's anywhere near how much money is on the line from Medicare/Social Security/tax policy choices? Or heck, even so-called "wedge issues" like gay rights or abortion rights?
[1] This is, of course, one easy way of valuing the negative utility of any given thing, by asking how much people would pay to avoid it.
Plus, no, it wouldn't: the President is both immune to criminal prosecution while in office and has plenary power to pardon, so "someone could make a treason case out of it" wouldn't constrain executive abuses. The only thing that constrains those is a public that cares enough to extract a price for the abuses, starting with public outcry and action at the ballot box.
Which is not to say I think it's a good idea.
This, of course, could be my ignorance. Certainly the only appearance of "immun" in the Constitution is in "immunities" in an unrelated context.
This is not so much an issue of immunity as of a requirement for the prosecution and defense to not be different parties.
> Seems like it would violate the concept of rule of law...
I would argue that the President being immune to prosecution for crimes committed while in office would be a bigger violation of the concept of rule of law than the President being subject to prosecution for such violations but only after leaving office.
While it may not be a good idea to impeach Obama over this, they could impeach Clapper over it, as he is the one who petitioned the government to dismiss the case on the basis that the plaintiffs didn't have grounds as they could not demonstrate that they had been affected, or possibly against Solicitor General Donald Verrilli who made the argument in court. Coupled with his lies to Congress during hearings about whether the NSA collected data on Americans ("not wittingly"), Clapper would probably be the best target.
Political optics, for one thing: they had the vote counts in and knew if he hung around the Senate was going to convict him and kick him out of office, so he was going to be out in any case. Resigning and having the new guy -- who had some credibility with people who had long ago lost any trust in Nixon -- say that a pardon was in the interest of the Nation looked better, while Nixon pardoning himself would have been even more divisive.
There's also, IIRC, at least some dispute about the extent of the scope of the exception to the pardon power that applies in cases of impeachment, and, while I'm not sure that it would have been resolved in a manner unfavorable to Nixon, pardoning himself while he was under an impeachment that had not yet been rendered moot by his resignation (as the impeachment power only extends against civil officers, not past officers) might have sparked an even longer and deeper crisis if someone thought to test the limits there.
What was Clapper v Amnesty?
It sounds like Solicitor General Verrilli made a lie of omission in the court. Is that considered a lie under oath?
What obligation does Solicitor General Verrilli have to the three Senators to answer their questions? What consequences might he face if he choose to ignore the letter?
Realistically, what could this mean for the original Clapper v Amnesty case, and how might it affect the public in general?
The whole issue of the letter is that the representations made by the government to the Court on which it relied in finding that there was a remedy available at a later point which would be more appropriate were not true.
(As an aside, dragonwriter, your posts throughout topic have been outstandingly helpful. Thanks.)
This is the general idea behind the technique of Parallel Construction.
I agree that that's a problem with the original decision even beyond taking the government's representation at face value (and, really, a fundamental problem with the general approach that the exclusionary rule is usually the exclusive remedy for illegal search and seizure, which goes far beyond just the NSA electronic surveillance issue.)
The Supreme Court concluded that the injury in this case was speculative, based on the hypothetical possibility that a member of Amnesty International was in contact with someone who was targeted. The essence of Udall et al.'s letter is that the DOJ's representations to the Supreme Court suggested that the only way a U.S. person's (e.g. a member of Amnesty International) communications could get collected was if they were in contact with some foreign person who was targeted. Ergo, the Supreme Court's analysis was based on an incomplete understanding of the ways in which a U.S. person's communications could be collected, and therefore an incomplete understanding of how a member of Amnesty International's communications could be collected.
Solicitor general Verrilli must answer Congress's questions. I'm not quite sure what Verrilli's obligation to answer is at this stage. As a general rule, you don't want to ignore letters from Senators on Senate letterhead. Committees of the Senate do have inquiry powers and subpoena powers to force you to answer questions if you don't do so willingly. See: http://www.senate.gov/artandhistory/history/common/briefing/....
Actually, AFAIK, this is incorrect. I'm trying to find a later article i read a few days ago, but apparently Verrilli was not aware of any of this when he made statements at oral argument, and once he became aware, he fought a large internal fight to make sure his statements about giving defendants evidence stayed accurate.
Ah, here we go. At least for the first part of what I said, see http://www.nytimes.com/2013/10/17/us/politics/us-legal-shift...
"The move comes after an internal Justice Department debate in which Solicitor General Donald B. Verrilli Jr. argued that there was no legal basis for a previous practice of not disclosing links to such surveillance, several Obama administration officials familiar with the deliberations said."
(and about the oral argument prep failure here) "As a result, Mr. Verrilli sought an explanation from national security lawyers about why they had not flagged the issue when vetting his Supreme Court briefs and helping him practice for the arguments, according to officials."
So
A. It seems he wasn't aware
B. Once he was aware, he put a stop to the practice.
Now, this doesn't excuse any of what has happened here, but as far as anyone knows, he didn't intentionally mislead anyone.
Note that unlike a lot of folks involved in all of this, Donald Verrilli is the least likely to be involved in anything hinky or lie to a court. He's a true believer in the system.
It's the solicitor general's responsibility, as it is anyman's responsibility when testifying in court, to ensure his testimony is accurate. He didn't say, "as far as I know, this is what I think we might collect."
The Government made a persuasive argument that collection was limited specifically to the extent required to dismiss the case. This was not an honest mistake, it was a material misrepresentation of fact. There is no plausible deniability here.
I think it's appropriate to discuss what the ramifications should be, but it's naive to think Verrilli was not aware. I think it's also reasonable to question whether Chief Justice Roberts was also aware Verrilli was shoveling shit, seeing as how he appointed every judge currently serving on the FISA court.
While true, i'm not sure what you expected him to do here. He asked and checked with his prosecutors. They told him they were doing something that they were in fact not doing.
I guess I wouldn't expect the guy to personally check all of the many prosecutions here. There has to be some level of trust allowed for. At that point, I would just expect him to correct it if he was wrong.
"I think it's appropriate to discuss what the ramifications should be, but it's naive to think Verrilli was not aware."
So this i just flat out disagree with. You are basically calling him a liar who is covering his ass.
Talking with people who know him quite well, i'm basically told he would never do such a thing, and that he did in fact, do what the article says. With all due respect to your opinion, i choose to believe them over you :)
If that makes me naive, so be it.
(FWIW: I certainly don't expect you to trust me on this, i'm just explaining why I hold the opinion I do)
He is responsible for that. Either the individuals who induced him to commit perjury should be prosecuted, or, if he cannot reveal who those people are or is unwilling, then Verelli is just as guilty.
Essentially, I can't think of anyone who wouldn't have taken the same approach to preparing for argument that he did here.
As long as it's perceived as the will of the American people, as expressed through their elected representatives, it will continue.
Alas, I see no sign that Dianne Feinstein is likely to lose an election anytime soon.
If there happens to be something in the law authorizing people to lie to SCOTUS, then I suspect SCOTUS could strike that part of the law down.
I know it's doubtful, but one can hope.
Good on them... that's what representing the people is about.
That being said, this letter has pushed me over the edge for making a large contribution to his campaign.