The last decade has spawned a massive expansion of the domestic Surveillance State. Worse, the U.S. Government has vested itself with the virtually unchallenged ability to operate this surveillance regime in full secrecy and even beyond the reach of judicial review, which is another way of saying: above and beyond the rule of law.
Each time U.S. citizens in the post-9/11 era have accused government officials in federal court of violating the Constitution or otherwise acting illegally with how they spy on Americans, the Justice Department employs one of two secrecy weapons to convince courts they must not even rule on the legality of the domestic spying: (1) they insist the spying program is too secret to allow courts even to examine it (the Bush/Obama rendition of the "state secrets" privilege); and/or (2) because the spying is conducted in complete secrecy, nobody can say for certain that they have been subjected to it, and the DOJ thus argues that the particular individuals suing the Government -- and, for that matter, everyone else in the country -- lacks "standing" to challenge the legality of the spying (because nobody knows on whom we're spying, nobody has the right to sue us for breaking the law).
A government that can spy on its own citizens without judicial review is a government which, by definition, operates outside of the rule of law; as Alexander Hamilton put it in Federalist 15:
It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.
These are the two secrecy doctrines which the Bush and Obama DOJ have repeatedly invoked to shield even the Bush NSA warrentless eavesdropping program from all forms of legal accountability, notwithstanding the fact that three separate federal judges ruled (ultimately without consequence due to reversals on secrecy grounds) that the program violated the Constitution and/or criminal laws such as FISA. Most amazingly, the Obama DOJ has aggressively used these same secrecy doctrines to ensure that no courts ever review or adjudicate any government surveillance programs, including Bush's NSA warrantless program, even though then-Sen. Obama -- when opposing the 2005 nomination of NSA Chief Michael Hayden to become CIA Director -- accused Bush of breaking the law in spying on Americans without warrants and then said this on the Senate floor:
We don't expect the President to give the American people every detail about a classified surveillance program. But we do expect him to place such a program within the rule of law, and to allow members of the other two coequal branches of government - Congress and the Judiciary - to have the ability to monitor and oversee such a program. Our Constitution and our right to privacy as Americans require as much.
In 2008, the Democratic Congress enacted the FISA Amendments Act, which not only retroactively immunized telecoms from all liability for their role in Bush's illegal eavesdropping programs (thus terminating all pending lawsuits and ensuring no judicial adjudication of that program), but also, going forward, legalized much of Bush's previously illegal warrantless spying activities. The FAA was the most drastic expansion of government eavesdropping powers in decades. Numerous scholars documented how blatantly the new surveillance powers it vested violated the Fourth Amendment (the FAA was the bill which candidate Obama, when seeking the Democratic nomination, had unambiguously promised to filibuster, only to turn around, once he secured his Party's nomination, and vote against a filibuster and then in favor of the underlying bill).
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When Congress enacts a law vesting new domestic spying powers in the NSA that very likely violate the Fourth Amendment, the only solution -- at least in theory, as the American system is designed -- is for citizens to sue the Government in federal court and argue that the new law is unconstitutional. The Supreme Court unanimously explained back in 1803 in Marbury v. Madison (emphasis added):
It is emphatically the duty of the Judicial Department to say what the law is. . . .If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. . . .
[W]here a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.
That's as basic as it gets to the ostensible American design. If citizens are not able to do that -- if they have no mechanism to deny the Government the power to transgress the limits imposed by the Constitution -- what is the point of even having a Constitution?
Immediately after Bush signed the FAA into law, numerous journalists, human rights activists, and groups such as Amnesty International -- represented by the ACLU -- adhered to this design by suing the U.S. government, claiming that the FAA was unconstitutional under the Fourth Amendment. They argued that although the secrecy behind which the program was conducted prevented them from proving that they were subjected to it, their well-founded fear that they would be (and the steps they were forced to take in response) was enough harm to confer "standing" on them and allow them to challenge the law's constitutionality.
In response, the Bush DOJ raised its standard secrecy claims and convinced a lower court judge to dismiss the suit based on "standing." When the ACLU appealed this ruling to the Second Circuit Court of Appeals in New York, the Obama DOJ raised the same arguments to demand dismissal. But in March, a unanimous three-judge appellate panel rejected the Bush/Obama argument and reinstated the ACLU's lawsuit, holding that the plaintiffs' credible fear of being subjected to the FAA's eavesdropping power entitled them to proceed with their claims that the new law was unconstitutional. The Obama DOJ then sought a review of that decision by the entire Circuit, insisting that plaintiffs should be barred from contesting the constitutionality of the FAA.
Yesterday, the full Second Circuit panel issued its ruling on the Obama DOJ's request. Six of the judges voted against a full review of the decision by the three-judge panel, while six voted in favor of reviewing it. Because a majority is needed for a full-circuit review, the 6-6 tie means that there will no further review, and the March decision of the three-judge panel -- allowing the lawsuit challenging the FAA's constitutionality to proceed -- will stand. This significant victory for the rule of law may well be temporary, as the unusual 6-6 vote (and the numerous contentious opinions accompanying the vote) makes it likely (though by no means guaranteed) that the Supreme Court will accept this standing dispute for resolution. But at least for now, this is a good and important development.
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The bulk of the opinions issued by the Second Circuit judges were devoted to fairly standard arguments over the requirements of "standing." Here, for instance, was the crux of the argument for recognizing plaintiffs' standing, as expressed by Judge Gerard Lynch after he reviewed the Goverment's substantive arguments for why the FAA was constitutional:
The dissenting judges argued that mere fear of being subjected to this spying was insufficient to allow plaintiffs to sue; instead, they must prove they have been or will be spied upon (that nobody can prove this, due to the secrecy in which the program is shrouded, is a Kafkaesque Catch-22 of no apparent concern to these jurists).
But by far the most remarkable aspect of this ruling was the dissenting opinion issued by Dennis G. Jacobs, the Chief Judge of the Second Circuit. Notably, no other judges joined the Chief Judge's opinion, and it's not difficult to see why. Jacobs' opinion is one of the most intemperate, childish, nakedly ideological, and just plain obnoxious judicial outbursts you will ever encounter in writing. But it highlights some important facts about the federal judiciary that make it worth examining.
After accusing the plaintiffs of harboring anti-Americanism for daring to enforce the mandates of the United States Constitution against precisely the activities most feared by the American Founders: unchecked domestic government spying (Jacobs announced his discovery that the plaintiffs' argument rests on a "buried assumption that the United States is the only threat to liberty that anyone anywhere needs to worry about"), he turned his scornful ire to the ACLU for the crime of representing these plaintiffs -- for free -- in a lawsuit to enforce the privacy rights of all American citizens. Unprovoked, Jacobs posed the question of what could possibly motivate the ACLU and its clients to bring this lawsuit -- apparently, an actual belief that the law is unconstitutional and dangerous could not possibly be the real motive -- and this is the answer he supplied:
At the risk of being obvious, the purpose of this lawsuit is litigation for its own sake -- for these lawyers to claim a role in policy-making for which they were not appointed or elected, for which they are not fitted by experience, and for which they are not accountable. As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.
Apparently, only "fantasies of persecution" -- as opposed to the most basic knowledge of history -- can lead someone to believe that spying powers conducted in secret will be abused. He then added that this Constitutional challenge to the Government's secret spying powers "bears similarity to a pro se plaintiff’s allegation that the CIA is controlling him through a radio embedded in his molar." Not content with maligning their motives and patriotism, he then all but accused the ACLU and its clients of lying in order to sustain the lawsuit ("these affidavits employ all the lawyer's arts to convey a devious impression . . . affidavits that are craftily worded to skirt actual falsehood").
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Let's spend a moment comparing Dennis G. Jacobs to the ACLU lawyers whose alleged motives he just smeared based on his armchair assessments of their psychology (all while ironically criticizing them for "pretenses" to "expertise" for "which they are not fitted by experience"). This comparison not only demonstrates how deceitful and malicious is his attack, but it also speaks volumes about the corrupted role the federal judiciary is playing in our system of government.
Virtually every ACLU lawyer is very smart and well-educated; for instance, the lead ACLU lawyer in this case, Jameel Jaffer, is a graduate of Cambridge University and Harvard Law School, where he served as an editor of its law review. Every one of these lawyers could therefore easily have joined (and could still join) the nation's most lucrative Wall Street law firms, or enter government and serve in various functionary capacities -- presumably what they would do if actually motivated by a need for self-importance, policy influence or financial gain, as Jacobs accuses.
Instead, they labor very long hours in exchange for a salary that is a small fraction of what they could earn at any moment they choose. They work for a non-profit organization that is systematically excluded from the halls of Washington power, often representing the most marginalized, powerless, and scorned segments of society (which, by definition, are most vulnerable to rights abridgments). They do so knowing that they will be continuously smeared and maligned in the most vicious, McCarthyite and public ways by the Dennis Jacobses -- or the Lee Atwaters and Weekly Standards -- of the world. Nobody with their background and opportunities would do that for any reason other than genuine convictions about basic Constitutional liberties and a passionate commitment to defending them, thus fulfilling what Thomas Paine, in his 1790 Dissertations on First Principles in Government, described as the prime duty for preserving freedom for everyone (a passage Dennis Jacobs, if he would ever read it, would likely castigate as "fantasies of persecution"):
An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.
All of that stands in very stark contrast to Dennis G. Jacobs. Immediately after graduating law school, he went to work for a large Wall Street law firm -- Simpson, Thacher & Bartlett -- and stayed there for the next 19 years, until George Bush 41 appointed him to a life-tenured federal judgeship. How noble. So the entirety of Jacobs' law career before becoming a judge was devoted to snorting up as much cash as he could as he represented large corporations and banks. That's the person who just anointed himself the arbiter and smearer of the integrity, psychology and motives of ACLU lawyers and their human-rights-activists clients for daring to challenge a government spying law on Fourth Amendment grounds.
But far more notable is that Jacobs has remained every bit as loyal -- indeed, more so -- to these large corporate institutions as a federal judge. He has developed a bizarre contempt for pro bono legal work: i.e., lawyers who work for free on behalf of poor and otherwise marginalized clients against the types of clients Jacobs enriched himself representing, in order to provide some minimal degree of fairness and balance in the justice system. In 2008, Jacobs delivered a speech to the right-wing Federalist Society mocking and scorning pro bono work -- he entitled the speech "Pro Bono for Fun and Profit" -- and began by depicting himself as some sort of courageous, politically incorrect martyr for bravely attacking pro bono lawyers in front of this right-wing audience:
When lawyers gather and judges speak, you can count on hearing something on the subject of pro bono service. It is always praise of all that is done, with encouragement to do more. This evening I am going to articulate a view that you may not have heard: I will touch on some of the anti-social effects of some pro bono activity.
He then devoted his entire speech to attacking lawyers who challenge government acts as unconstitutional and those who bring civil rights cases on behalf of large numbers of discriminated-against citizens. Most of the rhetoric he spat yesterday at the ACLU, Amnesty and others in his "judicial opinion" was just pre-packaged politicized tripe that he delivered years ago to the Federalist Society. He's on a one-man ideological crusade to convince the nation of the evils of pro bono work and, especially, effective challenges to government and corporate power.
In 2010, Jacobs again appeared before the Federalist Society's annual conference and delivered the "Barbara K. Olsen Memorial Lecture," named after the Fox News legal scholar who spent the 1990s churning out every tawdry allegation against Bill and Hillary Clinton before she died in the 9/11 attack. Ironically, Jacobs delivered a 2006 speech -- entitled "The Secret Life of Judges" -- in which he purported to reveal a pervasive "bias" among the judiciary: reliance on law and legal procedure in lieu of policy judgments.
Of course, Jacobs is the living, breathing embodiment of judicial bias: a devoted servant to corporate and government power, a right-wing hack who barely attempts to hide his political loyalties, and -- most of all -- a declared enemy of the very few mechanisms that exist to enable the poor and marginalized to receive competent legal representation and for political power to be subject to some minimal checks (what we call "the Constitution"). It should be anything but surprising that a corporate-serving, political-power-revering, highly politicized figure like this produces judicial opinions that are slightly more restrained versions of a Rush Limbaugh or Bill O'Reilly rant. He churns out right-wing agitprop masquerading as legal reasoning.
But the reason he's worth examining is because he's anything but aberrational. He's the Chief Judge of the second- or third-most important court in the country. He works in a judicial system that more and more does the opposite of what it was ostensibly designed to do: it is now devoted to shielding political officials from legal accountability and transparency rather than exposing them to it, enabling rather than halting transgressions of the Constitutional limits imposed on them, and most of all, further empowering the most powerful factions against the least powerful rather than equalizing the playing field. In that regard, the life of Dennis G. Jacobs -- and his slanderous, contemptuous outburst of yesterday -- should be studied as a perfect embodiment of how the American judicial branch has become so corrupted as a tool for the nation's most powerful factions.
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