More FISC Shenanigans Or, Who Died And Made Her God?
Yesterday I posted up my concerns regarding the FISC presiding jurist, Judge Kollar-Kotelly. The concerns revolved around her blatant disregard for any oversight by the appellate FISA court, and her playing fast and loose with the rules; basically making them up as she went along. These "rules" that she enforced included not being able to base the warrants being requested on information gained through NSA intercepts.
This is idiotic in the first place, as those intercepts establish "probable cause." Hamid is in the US, and he has been receiving a number of phone calls from Pakistan. Over the course of two weeks the NSA picks up on the fact that he might be aiming to pull off a terrorists attack. He resides in Chicago. They even pick up part of a conversation where his associate alludes to flight training, and it just so happens that Hamid works at O'Hare airport. Based on all of this information, the Justice Department can't go to the FISC and request a warrant because of Judge Kollar-Kotelly's rules.
Further, she isn't being upfront with her colleagues. Judge Lamberth, the former presiding jurist, also had similar methods against the Justice Department, and he and Kollar-Kotelly shared similar ideas on how a FISA warrant should be obtained. Now, the methods with which the Justice Department was told it had to go through--every hoop--is unprecedented. Yestyerday, Hugh Hewitt had Jonathan Adler on from Case Western Law, and the "Smart Guys," Erwin Chemerinsky and John Eastman. Here's what they had to say about this.
Well, as a general matter, we...you know, the way our legal system is set up at the federal level is that judges aren't supposed to give their opinions about the legal or Constitutional or even policy merits of various actions by other branches, or the Constitutionality of laws outside the conduct of a case or controversy. And yet, what it appears was going on here is the judges were saying well, if you do X and Y, that might be unconstitutional. But if you do Z, it'll be more legal, or it'll prevent it from being reviewed. And that sort of thing is what we want judges to be separated from. That's why since the founding, we have recognized that judges are not supposed to give their opinion on the legality or Constitutionality of anything outside an actual case or controversy that's being litigated and brought before them in that way. --Jonathan Adler
This is one of the reasons why I disliked the story, as well. This is, in short, and advisory opinion. The US Supreme Court can't offer up one of those, and frankly the FISA court shouldn't be doing it either. Judges are arbiters of the law, not lawyers to help other lawyers figure out ways aroujnd certain things, or to point out where the legal entanglements might end. There sole job is to rule on the law, being completely and totally nonpartisan.
And unfortunately, there is a history of at least the appearance of the manipulation of the docket of cases in federal district court in the District of Columbia. And given that history, the appearance is very bad. I mean, I don't like to make accusations about what judges' intentions are and the like, but that's one of the reasons why we have rules about how cases go through the process, and which judges they come before. And anytime a judge manipulates that, it undermines our faith that judges are neutrally applying the law, and faithfully executing their obligation. So that's another ground on which this is troubling to me, because it raises the possibility of accusations that we don't want judges to be subject to. --Jonathan Adler
Again, a smart point. Judges shouldn't have the ability to mainpulate dockets. In fact, I've never heard of such a thing occurring before (Sue me, I'm not a lawyer; I just study law for fun, and to better prepare myself for law school) but when it does--as in this case--it gives me pause. Again, jurists are to be unbiased. They should not be manipulating anything for any reason.
What they've basically done is act instead of the legislature to create a whole new set of rules. And while I think they were acting out of noble motives, I think what it points to is we need the legislature to be doing this, not judges on their own doing this. --Erwin Chemerinsky
Despite our differences, Erwin was quick to point out my number one concern. Judges don't make up the rules. In the case of the FISC, Congress makes up the rules. Judge Kollar-Kotelly is, as I said above, making things up as she goes. Not only is this out of bounds when it comes to a judge, but it makes it incredibly difficult for anyone seeking such a warrant to obtain one when she does switch up the rules on them.
Well, I mean, I think you have to understand that these decisions all occur against a backdrop of a pretty strong statement by this court's boss, the FISA court of review, which is the appellate court over FISA matters, and that said this back in 2002. We take for granted that the president does have inherent authority to conduct warrantless searches to obtain foreign intelligence information. And assuming that is so, FISA could not encroach on the president's Constitutional power. That's a very strong statement by the court that sits superior to this court, that what the president was doing here was Constitutional. And then for this court unilaterally to say I'm not going to entertain any information you gained by that Constitutional activity, because I think it's unconstitutional, I think is to basically undermine the whole notion of appellate process. --John Eastman
BINGO! Give John the fuzzy bunny. She has done just that. In effect, she is bucking the precedent of the federal courts in this matter. The president does have the Constitutional authority to conduct these intercepts. And, Judge Kollar-Kotelly is indeed throwing away those precedents and she claims that those precedents don't apply in her court. When a case has been decided, it becomes precedent for future, similar legal concerns in the same jurisdiction. These precedents can't be trumped unless done so by the US Supreme Court. The FISC, like all other federal district and appellate courts--in essence, "inferior courts"--sits lower than the Supreme Court.
In essence, Judge Kollar-Kotelly has decided that she, above all others, determines what is and what isn't "illegally obtained" information; she is basically telling the president that "OK, you're the president, and you think you have this authority, but I'm the judge, and I think you're wrong. And because I think this, you can't use that evidence in my court." It's a preposterous stance for a judge to make, especially with the precedent backing the president up. We have five specific cases where the president's powers to surveil using warrantless taps or intercepts have been upheld. These include Clay, Butenko, Truong, US v. Us District Court, and In re Sealed Case 02-001. All five of these cases show that Judge Kollar-Kotelly is overstepping her boundaries in declaring the president's power unconstitutional.
The constitutionality of the program is not for her to decide. That belongs in the purview of the Supreme Court. A couple of cases are already being appealed to the high court over this program. ACLU v. NSA, Center for Constitutional Rights v. Bush, Ali al-Timimi has filed suit in an attempt to determine of the NSA program was used to nail him (he was charged and convicted of soliciting others to levy war against the United States; the case is going through appellate procedures), and the Electronic Frontier Foundation has filed a class-action suit against AT&T for opening it's telecommunications lines and databases up for the NSA and federal government. Al-Timimi's case is before the Fourth Circuit Court, and the AT&T lawsuit is before the US District Court for the Northern District of California.
There are two things that I know of for sure. First, the president's powers are going to tested on the level of the Supreme Court. At this point the controversy is raging so hard that they'll be left with no choice. The nation--one way or another--needs to know if the president has this authority, and the ultimate arbiter in this case would be the high court. (We believe he does pursuant to the authority granted to him under Article II of the US Constitution; Sabrina, our legal oversight, agrees.) Second, Judge Kollar-Kotelly isn't going to like the publicity she's been given by the Post. Already, legal scholars are lining up, and drawing battle lines over whether or not she overstepped her authority. In short, as I pointed out above, they disagree with her blatant attempts to dictate what is and isn't constitutional in her court, especially with the precedents set already on this issue.
Publius II
Yesterday I posted up my concerns regarding the FISC presiding jurist, Judge Kollar-Kotelly. The concerns revolved around her blatant disregard for any oversight by the appellate FISA court, and her playing fast and loose with the rules; basically making them up as she went along. These "rules" that she enforced included not being able to base the warrants being requested on information gained through NSA intercepts.
This is idiotic in the first place, as those intercepts establish "probable cause." Hamid is in the US, and he has been receiving a number of phone calls from Pakistan. Over the course of two weeks the NSA picks up on the fact that he might be aiming to pull off a terrorists attack. He resides in Chicago. They even pick up part of a conversation where his associate alludes to flight training, and it just so happens that Hamid works at O'Hare airport. Based on all of this information, the Justice Department can't go to the FISC and request a warrant because of Judge Kollar-Kotelly's rules.
Further, she isn't being upfront with her colleagues. Judge Lamberth, the former presiding jurist, also had similar methods against the Justice Department, and he and Kollar-Kotelly shared similar ideas on how a FISA warrant should be obtained. Now, the methods with which the Justice Department was told it had to go through--every hoop--is unprecedented. Yestyerday, Hugh Hewitt had Jonathan Adler on from Case Western Law, and the "Smart Guys," Erwin Chemerinsky and John Eastman. Here's what they had to say about this.
Well, as a general matter, we...you know, the way our legal system is set up at the federal level is that judges aren't supposed to give their opinions about the legal or Constitutional or even policy merits of various actions by other branches, or the Constitutionality of laws outside the conduct of a case or controversy. And yet, what it appears was going on here is the judges were saying well, if you do X and Y, that might be unconstitutional. But if you do Z, it'll be more legal, or it'll prevent it from being reviewed. And that sort of thing is what we want judges to be separated from. That's why since the founding, we have recognized that judges are not supposed to give their opinion on the legality or Constitutionality of anything outside an actual case or controversy that's being litigated and brought before them in that way. --Jonathan Adler
This is one of the reasons why I disliked the story, as well. This is, in short, and advisory opinion. The US Supreme Court can't offer up one of those, and frankly the FISA court shouldn't be doing it either. Judges are arbiters of the law, not lawyers to help other lawyers figure out ways aroujnd certain things, or to point out where the legal entanglements might end. There sole job is to rule on the law, being completely and totally nonpartisan.
And unfortunately, there is a history of at least the appearance of the manipulation of the docket of cases in federal district court in the District of Columbia. And given that history, the appearance is very bad. I mean, I don't like to make accusations about what judges' intentions are and the like, but that's one of the reasons why we have rules about how cases go through the process, and which judges they come before. And anytime a judge manipulates that, it undermines our faith that judges are neutrally applying the law, and faithfully executing their obligation. So that's another ground on which this is troubling to me, because it raises the possibility of accusations that we don't want judges to be subject to. --Jonathan Adler
Again, a smart point. Judges shouldn't have the ability to mainpulate dockets. In fact, I've never heard of such a thing occurring before (Sue me, I'm not a lawyer; I just study law for fun, and to better prepare myself for law school) but when it does--as in this case--it gives me pause. Again, jurists are to be unbiased. They should not be manipulating anything for any reason.
What they've basically done is act instead of the legislature to create a whole new set of rules. And while I think they were acting out of noble motives, I think what it points to is we need the legislature to be doing this, not judges on their own doing this. --Erwin Chemerinsky
Despite our differences, Erwin was quick to point out my number one concern. Judges don't make up the rules. In the case of the FISC, Congress makes up the rules. Judge Kollar-Kotelly is, as I said above, making things up as she goes. Not only is this out of bounds when it comes to a judge, but it makes it incredibly difficult for anyone seeking such a warrant to obtain one when she does switch up the rules on them.
Well, I mean, I think you have to understand that these decisions all occur against a backdrop of a pretty strong statement by this court's boss, the FISA court of review, which is the appellate court over FISA matters, and that said this back in 2002. We take for granted that the president does have inherent authority to conduct warrantless searches to obtain foreign intelligence information. And assuming that is so, FISA could not encroach on the president's Constitutional power. That's a very strong statement by the court that sits superior to this court, that what the president was doing here was Constitutional. And then for this court unilaterally to say I'm not going to entertain any information you gained by that Constitutional activity, because I think it's unconstitutional, I think is to basically undermine the whole notion of appellate process. --John Eastman
BINGO! Give John the fuzzy bunny. She has done just that. In effect, she is bucking the precedent of the federal courts in this matter. The president does have the Constitutional authority to conduct these intercepts. And, Judge Kollar-Kotelly is indeed throwing away those precedents and she claims that those precedents don't apply in her court. When a case has been decided, it becomes precedent for future, similar legal concerns in the same jurisdiction. These precedents can't be trumped unless done so by the US Supreme Court. The FISC, like all other federal district and appellate courts--in essence, "inferior courts"--sits lower than the Supreme Court.
In essence, Judge Kollar-Kotelly has decided that she, above all others, determines what is and what isn't "illegally obtained" information; she is basically telling the president that "OK, you're the president, and you think you have this authority, but I'm the judge, and I think you're wrong. And because I think this, you can't use that evidence in my court." It's a preposterous stance for a judge to make, especially with the precedent backing the president up. We have five specific cases where the president's powers to surveil using warrantless taps or intercepts have been upheld. These include Clay, Butenko, Truong, US v. Us District Court, and In re Sealed Case 02-001. All five of these cases show that Judge Kollar-Kotelly is overstepping her boundaries in declaring the president's power unconstitutional.
The constitutionality of the program is not for her to decide. That belongs in the purview of the Supreme Court. A couple of cases are already being appealed to the high court over this program. ACLU v. NSA, Center for Constitutional Rights v. Bush, Ali al-Timimi has filed suit in an attempt to determine of the NSA program was used to nail him (he was charged and convicted of soliciting others to levy war against the United States; the case is going through appellate procedures), and the Electronic Frontier Foundation has filed a class-action suit against AT&T for opening it's telecommunications lines and databases up for the NSA and federal government. Al-Timimi's case is before the Fourth Circuit Court, and the AT&T lawsuit is before the US District Court for the Northern District of California.
There are two things that I know of for sure. First, the president's powers are going to tested on the level of the Supreme Court. At this point the controversy is raging so hard that they'll be left with no choice. The nation--one way or another--needs to know if the president has this authority, and the ultimate arbiter in this case would be the high court. (We believe he does pursuant to the authority granted to him under Article II of the US Constitution; Sabrina, our legal oversight, agrees.) Second, Judge Kollar-Kotelly isn't going to like the publicity she's been given by the Post. Already, legal scholars are lining up, and drawing battle lines over whether or not she overstepped her authority. In short, as I pointed out above, they disagree with her blatant attempts to dictate what is and isn't constitutional in her court, especially with the precedents set already on this issue.
Publius II
posted by Syd And Vaughn | 11:36 AM
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