“Profound Equities with Yemen in Terms of Counter-Terrorism” Justify Child Soldiers?

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As the prosecutors in Omar Khadr’s sentencing hearing try to undercut the testimony of a defense witness who believes Khadr can be rehabilitated, not least because of his age, an anonymous White House official justifies to Josh Rogin Obama’s decision to undercut a law prohibiting the government from funding countries that use child soldiers.

As I suspected, the Administration rationale for exempting Yemen from sanction explicitly has to do with our counter-terrorism efforts there.

Yemen is a recipient of significant direct U.S. military assistance, having received $155 million in fiscal 2010 with a possible $1.2 billion coming over the next five years. Yemen is also a much needed ally for counterterrorism operations. The government is engaged in a bloody fight with al Qaeda (among other separatist and terrorist groups), and estimates put the ratio of child soldiers among all the groups there at more than half. Nevertheless, “the president believes there are profound equities with Yemen in terms of counterterrorism that we need to continue to work on,” the official told The Cable.

It’s bad enough that our assistance in Yemen will contribute to a war in which half the soldiers are boys.

But I really am saddened by the coincidence in this timing. At this very moment, we’re going to great lengths in Gitmo to villainize Khadr, at least partly to dismiss all the criticism about trying a child soldier (for a crime that is not a crime). It’s as if those involved are trying to convince themselves that their war on terror trumps international norms of decency.

And even as we’re doing that, the President is taking affirmative steps to make it more likely that another boy, like Khadr, will be put in the same situation as him, attacked for following the orders of the adults around him.

The Same Day US Gets Guilty Plea from Child Soldier, It Exempts Yemen and Others from Restrictions on Using Child Soldiers

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The asshole in charge of shredding our Constitution has a really sick sense of humor. Yesterday, the same day the government got Omar Khadr to plead guilty to crimes that aren’t crimes that occurred when he was a child, Obama issued this memorandum.

By the authority vested in me as President by the Constitution and the laws of the United States of America, pursuant to section 404(c) of the Child Soldiers Prevention Act of 2008 (CSPA), title IV of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (Public Law 110 457), I hereby determine that it is in the national interest of the United States to waive the application to Chad, the Democratic Republic of the Congo, Sudan, and Yemen of the prohibition in section 404(a) of the CSPA.

This memo appears to waive the following restriction, thereby allowing the US to fund operations with or make weapons sales to Chad, DRC, Sudan, and Yemen, even though the State Department has reason to believe they use child soldiers.

(a) In General- Subject to subsections (c), (d), and (e), none of the funds appropriated or otherwise made available for international military education and training, foreign military financing, or the transfer of excess defense articles under section 116 or 502B of the Foreign Assistance Act of 1961 (22 U.S.C. 2151n(f) and 2304(h)), the Arms Export Control Act (22 U.S.C. 2751), the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008 (division J of Public Law 110-161) or under any other Act making appropriations for foreign operations, export financing, and related programs may be obligated or otherwise made available, and no licenses for direct commercial sales of military equipment may be issued to the government of a country that is clearly identified, in the Department of State’s Country Report on Human Rights Practices for the most recent year preceding the fiscal year in which the appropriated funds, transfer, or license, would have been used or issued in the absence of a violation of this title, as having governmental armed forces or government-supported armed groups, including paramilitaries, militias, or civil defense forces, that recruit and use child soldiers.

So, one of the side benefits of Yemen’s cooperation with us on the war on terror is that it can conscript those under 18 and accept as volunteers those under 16 in its military.

This hopey changey thing is really beginning to overwhelm me.

Update: the State Department Report on Yemen last year described this use of child soldiers:

Reports of child soldiers increased in a number of armed conflicts across the country. According to the NGO Small Arms Survey, direct involvement in combat killed or injured hundreds of children annually.

The intermittent conflict in Saada, which began again in August, reportedly drew underage soldiers fighting for the government and the rebel Houthis (see section 1.g.). The Houthis reportedly used children as runners in between groups of fighters as well as to carry supplies and explosives, according to local children’s rights NGO Seyaj. Tribes the government armed and financed to fight alongside the regular army used children younger than 18 in combat, according to reports by international NGOs such as Save the Children.

Married boys, ages 12 to 15 years, were reportedly involved in armed conflict beginning in November 2008 in Amran governorate between the Harf Sufian and al-Osaimat tribes. According to tribal custom, boys who married were considered adults who owed allegiance to the tribe. As a result, half of the tribal fighters in such conflicts were children who had volunteered to demonstrate their tribal allegiance.

It also described the sex trafficking in girls.

There were reports of underage internal sex trafficking during the year. According to a local human rights NGO, an unknown number of women were trafficked from their homes to other regions within the country for the purposes of prostitution.

Though the report says most sex slaves worked in hotels, casinos, and nightclubs, if any of them were used by the armed forces, they would also count as child soldiers.

Update: See this exchange between harpie and powwow, who were discussing this earlier this month.

Obama DOJ Moves 9th Circuit To Stay DADT Ban

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Last night (Tuesday October 19), Central District of California Judge Virginia Phillips entered her order denying the Obama DOJ motion for stay of her surprisingly broad worldwide injunction against enforcement by US Military of the DADT policy. Here is a report from Josh Gerstein at Politico on Phillips’ decision.

As expected, the DOJ has appealed Phillips’ denial of stay to the 9th Circuit, and did so already this morning. Here is the full main brief submitted in support of the motion for stay.

Having read the brief, I will say that it is much better constructed than previous filings by the DOJ regarding the injunction, maybe they are starting to take the matter seriously. By the same token, it is also striking that the filing is much more forceful in its assertion that the policy of President Obama and his Administration is for elimination and repeal of DADT. That message is conveyed by language such as this from footnote one in the brief:

The Administration does not support § 654 as a matter of policy and strongly believes that Congress should repeal it. The Department of Justice in this case has followed its longstanding practice of defending the constitutionality of federal statutes as long as reasonable arguments can be made in support of their constitutionality.

That is positive. What is very troubling, however, is that the Administration, by and through the DOJ never – never – indicates that it considers DADT to be unconstitutional on its face. Every objection by team Obama is in favor simply of study and legislative repeal; and, in fact, they doggedly protect the constitutionality of DADT. There is a HUGE difference between the two concepts of saying it is simply something that should be fixed by Congress (increasingly unlikely, it should be added, in light of the massive gains conservative Republicans are poised to make) and saying the Administration fully believes the policy unconstitutional and invidiously discriminatory (the position Obama blatantly refuses to make).

It should also be noted that a refusal to acknowledge the fundamental constitutionally discriminatory nature of DADT is also entirely consistent with the recent history of Obama Administration conduct and statements on the issue. Whether it be Obama himself, official spokesman Robert Gibbs or Valerie Jarrett, every time the direct question on constitutionality of DADT is raised, it is deflected with a flimsy response framed in terms of Congressional repeal. At this point, you have to wonder if Barack Obama and his Administration even consider the blatant discrimination of DADT to be of a Constitutional level at all; the evidence certainly is lacking of any such commitment.

Congress should repeal DADT as Obama suggests, but the basis and harm is much deeper and more profound than Read more →

CIA Sues over Whistleblower Book

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Jeff Stein reports that, after months of rumors this would happen, the CIA has sued Ishmael Jones for publishing The Human Factor: Inside the CIA’s Dysfunctional Intelligence Culture without approval from CIA’s review board.

The Justice Department suit, on behalf of the spy agency, seeks “an injunction against any further violations of ‘Jones’ secrecy obligations and recovery of the proceeds from the unauthorized publication.”

It cited as precedent Snepp vs. United States, the 1980 Supreme Court decision against former CIA officer Frank Snepp that validated the agency requirement that employees submit their writings for approval as a fiduciary obligation.

As a result of the decision, the government was able to seize Snepp’s profits from the book. Snepp subsequently wrote a second book, “Irreparable Harm: A Firsthand Account of How One Agent Took on the CIA in an Epic Battle Over Free Speech,” which was cleared by the agency.

Like Snepp, whose memoir “Decent Interval” harshly criticized CIA activities at the end of the Vietnam War, Jones maintains that his book contained “no classified information.”

He said he used a pseudonym because “I was under deep cover for most of my career, so to use my real name might expose people I’ve met.”

Publishing the book without approval was necessitated because “there are no viable whistleblower mechanisms within the CIA,” he said.

I guess, unlike Bob Woodward, Jones is one of the people whom the President won’t allow to leak secrets.

Will SCOTUS Give Ashcroft Immunity in Ashcroft v. al-Kidd?

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SCOTUS decided today to take John Ashcroft’s appeal of a 9th Circuit decision finding that he did not have immunity from suit in using the material witness statute to illegally hold someone without probable cause.

The Supreme Court, finishing its first sitting of the new Term, agreed on Monday to hear a single new case, a plea by former U.S. Attorney General John Ashcroft for immunity to a lawsuit claiming he misused a federal anti-terrorism law.   The Court, among denied cases, refused to hear a new challenge to the denial of voting rights to individuals when they are serving time in prison.

The Court limited its review of the new terrorism case (Ashcroft v. Al-Kidd, 10-98) to two issues: whether Ashcroft is entitled to absolute immunity in a case involving a detention under the federal “material witness” law, and whether he is entitled at least to qualified immunity to a Fourth Amendment claim.  The Court did not grant review of a third issue, involving the former Justice Department chief’s liability for false statements by a federal agent — apparently because the challenger has dropped that claim.  Justice Elena Kagan did not take part in the Court’s action, presumably because she had some prior role in the case as U.S. Solicitor General.

This is worrisome, not just because it’s another example of how Elena Kagan’s recusal on all these cases give the court an inherent conservative bias (even assuming Kagan will be better on executive power issues than I think she will be), but because by taking the case SCOTUS seems to suggest the 9th Circuit decision deserves more scrutiny.

The case concerns the arrest and detention for 16 days of Abdullah al-Kidd. After he was released, he was held on what amounts to probation for over a year, though he never did testify.

ACLU’s lead attorney on the case, Lee Gelernt, seems to have the same worry: Gelernt is pushing to have the 9th Circuit decision upheld.

Arresting and detaining someone for an extended period without probable cause to believe he violated the law goes against the most basic principles on which our country is founded. The appeals court made it very clear that former Attorney General Ashcroft could be held personally responsible if he used the material witness law to circumvent the Constitution’s longstanding rule that a suspect may not be arrested without probable cause of wrongdoing. The appeals court opinion was the right one, and the Supreme Court should uphold that decision. Government architects of policies that so clearly defy the Constitution must be held accountable to the law.

Presumably, immunity for Ashcroft here will extend to other Administration officials who trample rights in the guise of fighting terrorism.

Rule of Law Has Broken Down for Secrets, Just Like Everything Else

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Michael Isikoff takes a story Jack Goldsmith already treated and raises the logical conclusions. As I noted, Jack Goldsmith asked John Rizzo why it was that Woodward could publish the proceedings of a briefing from which even top Obama officials–like John Podesta–were excluded. Rizzo responded,

Simple. When a President himself is a key source and directs or at least signals to his Administration to cooperate with the author, that for all intents and purposes means the book becomes one big authorized disclosure. That’s what Obama did for Woodward, and that’s what Bush did for Woodward in his three books during that Administration, which also were packed with hitherto sensitive information. That’s what is remarkable and unique about Woodward’s standing.

Isikoff notes the same passage Goldsmith did and asks,

How can they credibly prosecute mid-level bureaucrats and junior military officers for leaking classified information to the press when so many high-level officials have dished far more sensitive secrets to Woodward?

He focuses closely on the case of Stephen Jin-Wood Kim whom the Obama Administration is prosecuting for leaking info on North Korea to Fox’s James Rosen.

Kim was indicted in August on charges he leaked classified information about North Korea’s nuclear intentions to James Rosen, a correspondent for FOX News.

Abbe Lowell, who got a couple of AIPAC officials cleared after threatening to show how they had only passed on information that people like Condi had already leaked to the press, is the lawyer asking this question.

Aside from the undercurrent, which seems to be asking why John Bolton’s buddies can’t politically leak information like Bolton used to when he was at State (and, implicitly, why AIPAC can’t leak information the President’s aides can), Isikoff is right.

But he misses the even bigger double standard (and of course doesn’t mention Dick Cheney’s orders to Scooter Libby to leak Valerie Plame’s identity to one of the designated reporters for these leaks, Judy Miller, which seems to be a notable example of this intentional leaking).

Less than a month ago, the Obama Administration told a judge they didn’t have to–couldn’t–tell a judge their basis for killing a US citizen. Instead, they invoked state secrets, claiming (among other things) they couldn’t even confirm or deny whether they had targeted Anwar al-Awlaki for assassination.

Yet this came after one after another Obama Administration official leaked the news that al-Awlaki had been targeted, and after they had obliquely confirmed that he was. The Administration can leak news of this targeting all it wants, apparently, but when a US citizen attempts to get protection under the law, then it becomes a state secret.

Now, Isikoff quotes some White House official denying that this kind of double standard exists.

Asked for comment, a White House official told NBC News: “The president is upset about the leak of any sensitive information to any pubic sources, and that includes sensitive information in the Woodward book. In fact, you’ll note that he explicitly refused to address classified matters with Mr. Woodward, even though he was asked about them.”

‘Unclassified gossip’

The official also disputed that the disclosures in the Woodward book might complicate the administration’s anti-leak crackdown. “Leaks are leaks and leaks of classified national security information are crimes. They are not less criminal because there are also leaks to Bob Woodward,” though the official contended that much of the “sensational” disclosures in Woodward’s book were “unclassified gossip about staff differences.”

As for claims of a double standard: the official stated: “There is no double standard. The administration opposes all leaks of classified information.” The official further said President Obama “certainly did not authorize” his aides to share share classified information with Woodward.

But (as Isikoff notes) DOJ is not investigating any of the intentional leaks in Woodward’s books, just as the Obama Administration went to some lengths to protect the Cheney and Bush transcripts that make it clear that they were ordering classified leaks for political gain.

You see, in addition to reserving the decision for itself of who gets prosecuted or not for fraud on courts and torture, the Administration is also arbitrarily choosing who gets prosecuted for leaks.

The American Data Octopus

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Data octopus. That’s how one European Parliament official described the US’ continued grab for unfettered access to more and more European data. (h/t WM)

“The Americans want to blackmail us,” said an agitated Alexander Alvaro, home affairs spokesman of the Germany’s Free Democratic Party (FDP) in the European Parliament. The Americans have become “like a data octopus,” he said, as if their tentacles were reaching out to all the world’s data.

Alvaro’s reference to “blackmail” refers to the US’ link of the Visa Waiver program–which allows citizens from a particular country to enter the US without a visa–with access to criminal investigation databases.

“Participation in the United States’ ‘Visa Waiver’ program,” Austrian Chancellor Werner Faymann wrote in a letter to the Viennese parliament, has been “linked to additional requirements for the exchange of information,” including “an agreement to exchange data relating to the detection of terrorists.” In other words, no data, no visa waiver.

The US is negotiating such deals, one by one, with individual countries. It seems to be an effort to undercut demands for more stringent protection of European data from the EUP, which previously demanded concessions from the US on the SWIFT program (though one of those concessions–for an approved EU bank data overseer who would monitor US access of SWIFT data–seems to be held up at the nominating stage).

I’m rather curious by this use of leverage. After all, to a point, the visa waiver program is a matter of convenience to international travelers, particularly business travelers. But after a point, it would just be a disincentive to do business with the US. We’ve already lost large numbers of the best researchers, as visa restrictions simply convinced them to study elsewhere. Is the US risking the same with business travelers?

Perhaps the most interesting revelation in this Spiegel article on the current tensions is that European investigators have repeatedly forced private companies to turn over their complete databases.

This attitude, [Sophie in ‘t Veld] said, is now beginning to rub off on European investigators. Time and again executives come to in ‘t Veld in her role as chair of the European Parliament’s Civil Liberties, Justice and Home Affairs committee to tell her confidentially that they have been illegally forced to hand over “their complete customer data.”

This would seem to follow the pattern used under Dick Cheney’s illegal wiretap program. But given the higher data protection laws in Europe, would seem to be even more incendiary.

At least one EU expert voiced the same thought I had as I traveled through Europe during what was purportedly a time of heightened security–the security warnings of a terrorist threat to Europe sure seem like they are being treated as scaremongering.

Last weekend, the US issued a travel warning for Europe on the basis of possible imminent terrorist attacks. Germany Interior Minister Thomas de Maizière, however, has warned against scaremongering. There is apparently no concrete evidence of imminent attacks in Germany. But perhaps, speculates one European Union security expert, it was just a little “background music” for the real questions to be discussed in the trans-Atlantic talks: How deeply can American terrorism investigators peer into European computers, how extensively can they monitor European bank accounts, tap into Blackberrys or listen in on Skype calls?

When Brian Ross first reported this, even he admitted that the US had no details of a real attack (I’m still looking for that video). But continued leaks to the ever-useful but unreliable Ross focused on tourists in major European airports. I just flew through Heathrow, undoubtedly one of the targets of any plot targeted at US tourists in major European airports. While American Airlines appeared to have heightened security, Delta had none, not even for those flying, as I was, on the same flight that the underwear bomber attempted to take down in December. Frankly, no one at the airport seemed even aware that there was a heightened alert. And if the fearmongering is designed to make European countries worried about the travel trade, then why not raise concerns about airports?

Ultimately, if the US achieves (or, more likely, continues to sustain) what it is seeking in these negotiations–unilateral control over much of the world’s data–then it can fearmonger like this at will, since only it will be able to claim to have a view of all the data points. Yes, there are undoubtedly real benefits to terror investigators to have access to data (balanced, no doubt, by the problem of having too much data to adequately scan). But this unquenchable thirst for more data sure seems to be as much about power as anything else.

Of Course the Intelligence Authorization Would Have a Signing Statement

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Because that’s just how these carefully crafted bills are treated by Presidents guarding their Executive Power.

DDay pointed me to the signing statement that Obama issued in conjunction with the new Intelligence Authorization. There are three key points, IMO.

Presidents still control all the secrets

One thing Obama does is reaffirm the President’s right to control all the secrets.

Section 331’s requirement to provide a “general description” of a covert action finding or notification provides sufficient flexibility to craft an appropriate description for the limited notification, based on the extraordinary circumstances affecting vital interests of the United States and recognizing the President’s authority to protect sensitive national security information. [my emphasis]

I’m not all that surprised or bugged by this. Basically, he seems to be saying that the members of the Intelligence Committees who just won the right to be briefed on covert operations will have to be very creative to understand the statements crafted with “sufficient flexibility” to keep them in the dark. But hell, this is still a damn sight better than it was.

Note, though, that Obama insists–as most of the legal filings we read here do–that the President retains all of the authority over secrets (presumably including deciding when to leak them broadly to people with no clearance).

Congress still won’t get to see OLC memos

I’m rather more intrigued by this statement, which I take to suggest that the Administration will share the “legal basis” (as in, “the AUMF”) for covert ops, but won’t share documents over which the Administration claims a privilege (which in the past has included OLC documents).

Also, as previously indicated, my Administration understands section 331’s requirement to provide to the intelligence committees “the legal basis” under which certain intelligence activities and covert actions are being or were conducted as not requiring disclosure of any privileged advice or information or disclosure of information in any particular form.

This is pretty important, given that last we heard there were OLC documents authorizing FBI wiretaps and drone strikes that–as far as we know–remain totally secret. Which still means the President will insist on writing law for himself until the Courts tell him differently.

Congress may never know the results of John Durham’s investigation

Then there’s this bit, which would clearly include John Durham’s investigation of the former and some still current members of the intelligence community (heck, it might even include John Brennan’s role in Dick Cheney’s illegal wiretap program).

In accordance with longstanding executive branch policy, my Administration understands section 405’s requirement that the Inspector General make an immediate report to congressional committees regarding investigations focused upon certain current or former IC officials as not requiring the disclosure of privileged or otherwise confidential law enforcement information.

Not only does this say that Obama refuses to let the Inspector General tell Congress whether there will be any accountability for torture, or even (given the broad claims the Administration made to shield Dick Cheney’s Plame testimony) what Durham found after he has closed his investigation, but it also suggests that the IC IG may not tell Congress things that CIA’s IG told Congress in the past. For example, this would cover some of the deaths by torture which were investigated but not prosecuted. So long as DOD or DOJ could claim to be investigating them, it seems, the IC IG would not necessarily tell Congress of the investigation.

Perhaps more troubling, this statement would seem to shield all of FBI’s investigative work–things like surveilling peace activists and conducting data mining of its massive databases.

I’m going to do some more research on what Obama’s trying to do with his statement about whistleblowers.

Moreover, the whistleblower protection provisions in section 405 are properly viewed as consistent with President Clinton’s stated understanding of a provision with substantially similar language in the Intelligence Authorization Act for Fiscal Year 1999.  See Statement on Signing the Intelligence Authorization Act for Fiscal Year 1999:  Public Papers of the Presidents of the United States, William J. Clinton, 1998 (p. 1825).

But I assume it sharply limits the rights of intelligence community whistleblowers.

This is not as bad as some of Cheney’s signing statements.  But it’s clear that the President wants to avoid oversight of his super duper powers.

Military Encroachment On Civilian Authority & Seven Days In May

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Via Digby comes this unsettling article by David Wood in Politics Daily about the growing militant contempt among military leadership for civilian authority and control.

The military officer corps is rumbling with dissatisfaction and dissent, and there are suggestions from some that if officers disagree with policy decisions by Congress and the White House, they should vigorously resist.

Officers have a moral responsibility, some argue, to sway a policy debate by going public with their objections or leaking information to the media, and even to sabotage policy decisions by deliberate foot-dragging.

This could spell trouble ahead as Washington grapples with at least two highly contentious issues: changing the policy on gays and lesbians in the military, and extricating U.S. forces from Afghanistan. In both cases, senior officers already have disagreed sharply and publicly with Defense Secretary Robert Gates and President Barack Obama, and in some cases officers have leaked documents to bolster their case.

…..

“The military officer belongs to a profession upon whose members are conferred great responsibility, a code of ethics, and an oath of office. These grant him moral autonomy and obligate him to disobey an order he deems immoral,” writes Marine Lt. Col. Andrew R. Milburn in Joint Forces Quarterly, an official journal published by the National Defense University under the aegis of the chairman of the Joint Chiefs of Staff.

That is especially true if his civilian leaders are incompetent, writes Milburn, who currently is assigned to the U.S. Special Operations Command in Stuttgart, Germany.

….

“When the results of bad decision-making are wasted lives and damage to the Nation; when the customary checks laid down in the Constitution — the electoral voice of the people, Congress, or the Supreme Court — are powerless to act in time; and when the military professional alone is in a position to prevent calamity, it makes little sense to argue that he should not exercise his discretion,” Milburn writes.

Read the entire article; please.

Now, there is no sense of any direct coup type of trend afoot in all this so much as an accelerating trend to the militarization of government and resigned acceptance by the Read more →

Unconstitutional Surveillance & United States v. United States District Court: Who the Winner is may be a Secret – Part 2

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[Given the current surveillance state situation in America, the Keith case, formally known as United States v. United States District Court, is one of the most important cases from our recent past. But I don’t really believe you can understand or know the law of a case, without really understanding the facts. The Keith case doesn’t have simple facts, but they are fascinating and instructive. So bear with me – this is going to take awhile, and will be laid out over a series of four posts. In Part I we went into the background, predicate facts and surrounding circumstances of the Keith case. Today in Part 2 we will discuss the actual court goings on in more detail. – Mary]

District Court Judges Deal with the Mitchell Doctrine in Smith & Sinclair.

Before we can get to the actual Keith case, where the DOJ filed a mandamus against Judge Keith, we have to look at what Judge Keith did with the DOJ arguments in the Sinclair case. In his Memorandum Opinion, Judge Keith summarized the DOJ’s position:

The position of the Government in this matter, simply stated, is that the electronic monitoring of defendant Plamondon’s conversations was lawful in spite of the fact that the surveillance was initiated and conducted without a judicial warrant. In support of this position, the Government contends that the United States Attorney General, as agent of the President, has the constitutional power to authorize electronic surveillance without a court warrant in the interest of national security.

Judge Keith then went on to list several cases, one from the Fifth Circuit and two others from District Courts in Kansas and Illinois, respectively, where the government had been successful in a similar argument.

However, not every case had gone DOJ’s way and Judge Keith chose to focus on “the exceptionally well-reasoned and thorough opinion of the Honorable Judge Warren Ferguson of the Central District of California. United States v. Smith, 321 F. Supp. 424 (C.D.Cal.1971).” Judge Ferguson bucked the Mitchell Doctrine in very clear and even prescient terms. The opinion isn’t long and it’s well worth the read. Judge Ferguson deals very swiftly with the Omnibus Act argument and moves on to the Fourth Amendment issues, finding that whatever exceptions you may and may not find in a statute, they do not create an exemption from the application of the Constitution.

DOJ argued (and its an argument that those involved in illegal surveillance still mouth today, largely unchallenged) that the Fourth Amendment isn’t really about interposing independent magistrates and warrants, it’s about … being reasonable. DOJ argued that the Executive branch only had to be reasonable in its surveillance and that they can best decide, based on all the complex issues of national security, if they’ve been reasonable. Judge Ferguson, quoting from a prior Supreme Court case, exposed that this argument would mean that the Fourth Amendment evaporates.

Interestingly, the Smith case also delves pretty deeply into another of the DOJ’s argument (again, one that persists today) that the warrantless wiretaps were legal because *everyone else did it too.* It makes for very interesting reading and attaches prior Presidential directives on warrantless wiretapping.

Beyond dealing with the Mitchell Doctrine Judge Ferguson had the insight and foresight to identify the problems presented by the inability of the courts to punish illegal Executive action other than by the Exclusionary Rule and also by the fact that under the DOJ’s, there was nothing that required the President to delegate this warrantless wiretap authority to the Attorney General. Rather than a delegation to the highest law enforcement officer of the nation who was required to specifically designate each person for surveillance, Judge Ferguson worried that under the DOJ’s argument the President could, instead, delegate such warrantless wiretap power to anyone and they could target without particularity. Judge Ferguson didn’t specifically mention night supervisors at the NSA or a massive program where the Attorney General turns the NSA loose to allow massive interceptions at the options of low level NSA operatives – interceptions without individual authorizations and without even an ability for the Attorney General to track, in filings to a secret court, who has been illegally surveilled. But he knew what men do with no oversight and no checks – he knew who Haydens were and what they would do.

Read more →