A few days removed from some very sad news in Iraq that coalition forces may have killed 200 civilians in an airstrike, the New York Times sharpened their pencils in an effort to sure up the never ending fight.  In an editorial, the New York Times Editorial Board decided to take up the United States’ dubious arguments concerning the legitimacy of the war against ISIS.  More specifically, the Editorial Board is concerned that since Congress has not declared war against Syria or ISIS, there could possibly be a finding by an Article III court that the war is illegal.

Instead of taking either President Obama or President Trump to task for fighting an illegal war for years, the Editorial Board blames Congress for allegedly shirking its duty to authorize the war.  Someone should give the Editorial Board a copy of the Constitution.  The war making power lies squarely in the hands of Congress.  Every month the war drags on the dubious nature of its legality is stretched ever further past its breaking point.

I thought that when Donald Trump took office places like the New York Times Editorial Board would open their eyes to their poor decisions in the past.  The New York Times itself helped lead the charge to bring us into the quagmire that is the Iraq War.  Now they are arguing that Congress has a duty to give a legal veneer over the latest Constitutionally infirm effort from our executive branch.  If the Editorial Board feels so strongly that this is a just war and that Congress must authorize the fight, then they should pick up a gun and join the front lines.  The type of insouciant fervor that propels the pen without due regard for the real shrapnel that follows can only be achieved in the highest of ivory towers.

Each time a new report is filed that speaks of the civilian deaths, impoverished migrants, and the fear that the homeland will be attacked, just remember that the New York Times Editorial Board was cheerleading the effort that led to all of these atrocities.  Our country should be weary of war.  People that cover those wars should understand the great human toll our actions have wrought.

Today, the New York Law Journal sent out an interesting 2nd Circuit case.  Here is a link to a copy of the decision.   I have not had time to fully read through the opinion and digest its holding.  I will follow up with a post when I have.  It will be interesting to see if/how this effects civil and criminal forfeiture in the 2nd Circuit.

I was watching President Obama give a speech on infrastructure two days ago.  Here is a link to the transcript.  Here is a link to the video.  I kept getting the feeling that I had heard this speech before.  President Obama said “[w]e are aiming to put every major infrastructure project on a public dashboard so everybody can go online; track our progress; hold us accountable; make sure things are coming in on time, on budget; make sure your taxpayer money is being used well, but also make sure that we’re putting folks back to work rebuilding America.”  During this speech the President also said, “[f]irst-class infrastructure attracts first-class jobs. Business owners don’t want a crumbling road or a bridge because then they can’t move out their stuff, and their workers aren’t as productive because it’s harder for them to get to work.”

This sounded like a familiar push.  The theme of building roads and online accountability did not seem like a new tactic.  I decided to look into some old speeches.  I was drawn to an economic speech given by the President on January 8, 2009.  Here is a link to the transcript. If you can remember, this speech took place during the big push for the American Recover and Reinvestment Act.  All the way back in 2009 the President promised that “[i]nstead of politicians doling out money behind a veil of secrecy, decisions about where we invest will be made transparently, and informed by independent experts wherever possible. Every American will be able to hold Washington accountable for these decisions by going online to see how and where their taxpayer dollars are being spent.”  Back in 2009 the President also claimed that “[t]o build an economy that can lead this future, we will begin to rebuild America. Yes, we’ll put people to work repairing crumbling roads, bridges and schools by eliminating the backlog of well-planned, worthy and needed infrastructure projects, but we’ll also do more to retrofit America for a global economy.”

It is not big news that a politician would recycle an old canard.  The issue is that the American Recovery and Reinvestment act cost somewhere between 1 to 1.7 trillion dollars.  Bridges should be fixed.  Projects should already be online.  I guess that I am a bit old fashioned when I believe that trillions of dollars spent should be followed by obvious returns.  

Today the Office of the Director of National Intelligence released new documents on its Tumblr page.  One of the documents disclosed was a Supplemental Order by Judge John Bates.  This Supplemental Order shows how statutory protections don’t have much meaning when they are interpreted in a secret, non-adversarial process.

The Supplemental Order deals with the issue of whether the Right to Financial Privacy Act precludes the FBI from collecting data from financial institutions pursuant to the FISA Business Records Provision.  The Right to Financial Privacy Act prohibits government access to financial records except in certain circumstances specified in the statute.  The statute does not list a request pursuant to the FISA Business Records Provision as one of the acceptable ways to obtain this information.

However, the Judge points out that one of the statutory exceptions allows certain designated FBI officials access to the records provided that the official finds they are relevant to a specific national security investigation.  The Judge then holds that if an FBI agents finding of relevance satisfies the standard then surely His Courts finding of relevance shall suffice.  You can break it down this way: the statute holds that the records are protected from the government except in specific situations A, B, C, and D.  The FISA court rationalized that it’s determination, we’ll call it determination F, is like C.  Even though the statute forbids everything that is not A, B, C, and D, since F is like C then the statute allows F.  That is some fancy reasoning.

What happened behind closed doors is that a statute got a brand spanking new exception never contemplated by Congress.  I can imagine that this very likely could have been the result had this happened in open court.  However, in open court (or at least a process that leads to a conviction in open court thereby making the determination public) there would be an adversary telling the government and the Court that they are incorrect.  There would have been a robust debate wherein each side presented its case and the court would have come to a conclusion.

Instead we get a secret court behind closed doors adding exceptions to statutes.  The laws that your elected officials put in place to protect your financial records got an extra exception.  I believe this is one of the dangers of a secret court with secret opinions.  You get secret exceptions that are not subjected to democratic controls.

It started out with Representative Michelle Bachmann.  On the floor of the house she made a speech where she compared the NSA’s 215 spying program to a phone book.  The NSA’s 215 spying program is the one where the NSA is collecting every single phone number that is called and received by every citizen of the United States.

Rep. Bachmann said said there is more information in your phonebook then there is in the NSA database.  You can see the video of Rep. Bachmann’s comments at the bottom of this Mediate article.  This same argument was pushed by Representative Mike Rogers today on ABC’s this week.  The video clip of his statement can be found here.

The analogy seems to be constructed as follows.  A phone book contains the address, name, and phone number of each person with a listed number.  The NSA program only collects phone numbers dialed.  Thus, the NSA program has less information then the phone book concerning each individual record collected.

This phone book analogy is insulting.  First things first, I don’t have a land line.  I only own a cell phone.  That means that my information is not found in a phone book.  So the argument fails there as it pertains to myself and to many others.

What if I did have a land line and my phone number name and address did appear in a phone book?  The information printed in a phone book is distinctly different from the information the NSA collects.  The NSA collects what phone numbers every American citizen has called, the time of the call, and the duration of the call (I think they also collect the location of the call, but there is no hard evidence yet).  The phone book simply does not contain that information.  Knowing that you have a phone number and knowing what numbers that phone number has dialed is an apples and oranges comparison.

The information that is collected by the NSA cannot be viewed in piecemeal.  The government has roundly argued that they are collecting a haystack to look for a needle.  That means, they posit, that we have to look at their collection as a compilation of billions of pieces of information.  We must look at it as one database collection, not billions of individual collections.  They then take an about face and would like to use the phone book analogy and say that the proper comparison is to look at one phone number in a phone book and one record of a collected call record.

In other words the NSA wants to have its cake and eat it too.  They want to justify the collection by saying that it is the mass collection that is important and that each individual record must be viewed as a whole in order to explain how it is related to a terrorism investigation.  This is necessary because the Patriot Act says the records must relate to a foreign terrorism investigation.

The government then wants to turn around and rationalize this massive collection by arguing that each individual bit of information collected is actually less, piece by piece, than if you look at an individual record of a phone book.

Also, the information that can be gleaned from a phone book and the NSA spying is completely different.  The phone book information will tell me what your phone number is and where you live.  If you move and your address changes then I can learn where you moved.  The information can be used a bit more broadly if there is some sort of a pattern related to your movements and other people’s movements.  By movements I mean complete changes of address from one apartment or house to another.

The NSA information gives us a much more complete picture of how information travels.  They know every person you communicate with on the phone.  They argue that there are no names collected, but this is an even more absurd argument.  They can track who you call after you speak to certain persons.  They can see how different groups interact and that gives them an amazing ability to understand how information is traveling and what persons are integral in the dissemination of this information.

I won’t belabor the point, but this 60 minutes segment called Counterinsurgency Cops, starting at around the 8:00 minute mark, shows you what data collection can do.  Granted the Counterinsurgency Cops collect more information than the NSA is ‘supposedly’ collecting, but it is a useful video to start learning just how much little bits of information can teach you about a person.

Also, if the value of the information collected is less than what is in a phone book then why are we collecting it?  It speaks volumes about their argument.  They say the collection of this information has been essential in stopping terrorist attacks, yet the information collected tells us so little that we should not be concerned that collecting it is violating our privacy.  Another example of wanting to eat their cake and have it too.  It’s almost as if each argument they make exists in its own vacuum and the prior facts and arguments don’t exist.

Lastly, the fact that two representatives of the people, one is the chairman of the intelligence committee, would be willing to use such a fatuous argument makes me skeptical of the value of their oversight of the NSA.  The argument is clearly aimed at someone who has much less than a basic understanding of the facts.

Because the Director of National Intelligence, James Clapper, lied to Congress and the American people with impunity the NSA and the government have a credibility gap.  In order to fill that gap they have to insure confidence in their actions.  Remember, each time they make an argument they are implicitly saying ‘trust us.’  They won’t let us see the programs so it is all about their word.  When they put forth the phone book analogy it makes that trust gap wider not more narrow.  If these programs truly have value that is greater than their privacy intrusion arguments like these do not help.

I was watching the most recent House Judiciary Hearings on FISA Oversight.  One meme that kept cropping up was politician’s expressing that they find it acceptable that the government is wholesale spying on non-American citizen persons.  I understand that much of this was to focus the purpose of the hearing on the NSA’s programs as they relate to American citizens.

However, this position strikes me as against the principals under which our government was founded.  I recently re-read the Declaration of Independence.  This is one of our foundational documents and gives us a better understanding of the limits our founders believe existed on every government.  They understood that there are certain rights that are unalienable and are given by God and have no boundaries.

Governments are formed to preserve these very rights.  It seems to me that many of the rights that we hold dear and that are enshrined in our Constitution are unalienable rights given to us by our Creator.  This means that American citizens and non-American citizens alike have these rights.  Our politicians should not just flippantly state that it is acceptable for our government to spy on the world.

I understand that we are currently engaged in a declared conflict.  Wars involve spying.  Just because you aren’t born within our borders does not mean that you have no rights to privacy from our government.  We do need to protect our citizens from international harms.  These harms do not justify a worldwide panopticon.

Furthermore, I am not naive enough to believe that the arrogance of our government somehow evaporates upon our shores.  Justification for spying on the world will probably be used for spying on us.  In the case of the NSA the difference is merely a keystroke.

Our government began with broad ideals that have been eroded by weak politicians who believe that somehow the current conditions require them to chip away at these rights to keep us safe.  What they forget is that we have a government of limited powers and they don’t have the power to chip away at these rights.  The often used argument that all three branches of government agree is but a red herring.  Our rights exist to protect us from all government no matter whether it is exercised as legislative, judicial, or executive.

Unfortunately, politicians too often give up on these principles in order for temporary gains on policy or electoral advantage.  An attack on the Constitution for something you desire is no different than your foes attack on the Constitution for something you abhor.

I came across an unfortunate consequence of confusion partially created by the charges resulting from hate crimes legislation.  This morning I read a New York Law Journal article by John Caher entitled Manslaughter Hate Conviction Found to Be Legally Consistent (paywall).  This article was based on a decision in the case of The People of the State of New York v. Dwight R. Delee KA 09-02479.

Mr. Dwight Delee was charged with killing a person by shooting him with a rifle.  The man he killed was a homosexual and wearing a dress at the time of the murder.  There was ample evidence that the crime was at least in part motivated by an animus towards the victim’s sexual preference.  Mr. Delee was charged with murder in the second degree as a hate crime, intentional murder in the second degree and criminal possession of a weapon in the third degree.  At trial there were some lesser included charges that were given to the jury including manslaughter as a hate crime in the first and second degrees and manslaughter in the first and second degrees.

After the trial Mr. Delee was convicted of manslaughter in the first degree as a hate crime and criminal possession of a weapon in the third degree.  He was acquitted of all the other charges, except one which us unnecessary to discuss as it is irrelevant to this article.

The defense moved post-verdict to dismiss the conviction of manslaughter in the first degree as a hate crime because it was inconsistent with the acquittal on the manslaughter in the first degree charge.  This properly preserved the issue for appeal.  Unfortunately, the judge dismissed the jury before asking them to resolve their conflicted verdict.  The judge could have avoided the, I believe unjust, result if he or she had merely asked the jury to resolve the conflict.  This was poor judicial conduct and helped to result in the ends of justice not being served.

The appeal resulted and the appellate court overturning the conviction of manslaughter in the first degree as a hate crime.  The majority found the not guilty finding of manslaughter in the first degree to be inconsistent with a guilty finding of manslaughter in the first degree as a hate crime.  The majority held that manslaughter in the first degree and manslaughter in the first degree as a hate crime are identical in all elements except the added hate crime element to the latter.  If the jury found that one of the elements of manslaughter in the first degree was not met, then it also could not have been met to support the hate crimes conviction.

The result is that a person who shot someone in cold blood serves the three and one half years on the illegal weapons possession and serves no time for the murder.

The jury foreman apparently presented an affidavit roughly a week after the verdict explaining what took place during the deliberations.  It turns out that the jury quickly determined that this was a hate crime.  Because they decided that it was a hate crime they found him not guilty of the other charges.  This is the danger of having the similar crimes charged.  It seems the jury found that because the hate crime element was met they should only find him guilty of the hate crime.  In other words, they saw a selection of choices and went with the most correct choice instead of all the correct choices.

It is confusing serving on a jury.  To have charges that are identical, except as to one element, being charged presents an added layer of difficulty.  It is fairly clear that this jury would most likely, if presented with the conflict by the trial judge, have found the defendant guilty of both manslaughter in the first degree and manslaughter in the first degree as a hate crime.

Whether or not you agree with hate crimes legislation it is clear that the confusion caused by having the similar counts charged to the jury helped result in a miscarriage of justice.  I understand that better judicial conduct most probably would have salvaged the verdict.

It could also be argued that the overcharging, inclusive of the lesser included offenses to the jury, may also result in confusion.  This is true and this case is not definitive and I am definitely not arguing that this case means all hate crimes legislation should be written out of the law.  I think it would be interesting to find out how often this happens and whether this case is an outlier.

I was reading the decision in United States v. Edwards, 498 F2d 496 (2nd Cir. 1974) and was struck by some dicta.  The majority, referencing airport searches, held that “[m]ore than a million Americans subject themselves to it daily; all but a handful do this cheerfully, even eagerly, knowing it is essential for their protection.” Id. at 500.  This sentence made me chuckle.

Maybe it is just me but when I go through airport security I don’t see people eagerly awaiting their chance to have their entire body x-rayed or jumping at the opportunity to have a TSA agent grope their person.  How things have changed.

I was reading the New York Times Article “In Secret, Court Vastly Broadens Powers of N.S.A.” by Eric Lichtblau.  This article was written generally about the secret law that has been created by the FISA court.  It also touches on how that law has expanded in gross numbers of decisions and substantive theories that underly these new decisions.  This article was written based on information received from “current and former officials familiar with the court’s classified decisions.”

Mr. Lichtblau’s article discusses the “special needs” doctrine and its application to terrorism cases.  He points out that the “special needs” doctrine has been used by the Courts to find “that a minimal intrusion on privacy was justified by the government’s need to combat an overriding public danger.”  Mr. Lichtblau then writes that this doctrine has been used more broadly to track the communications of American citizens based on the need to combat terrorism.  Mr. Lichtblau writes that his source contends this tracking “does not run afoul of the fourth amendment.”  Mr. Lichtblau further states that the reasoning used in terrorism cases has been used in cases involving other potential threats so long as they fit under the enlarged definition of “foreign intelligence.”

Mr. Lichtblau then writes that the metadata that is captured by the government has been treated unworthy of 4th amendment protection.  However, the government needs to have some sort of specific information about a threat in order to search the data it has collected.

Orin Kerr wrote a thoughtful post on this article on the Volokh Conspiracy entitled “Hints and Questions About the Secret Fourth Amendment Rulings of the FISA Court.”  His article raises some questions about the New York Times aricle.  Mr. Kerr is not surprised that the “special needs” doctrine has been used as public courts have already found that the “special needs” doctrine can be properly invoked with terrorism as its justification.  Furthermore, Mr. Kerr does not know what to take away from the article.  He wonders whether Mr. “Lichtblau [is] just saying that the metadata collection is outside the Fourth Amendment but that obtaining contents is protected (but covered by the special needs doctrine, requiring some cause but not a warrant)? Or is Lichtblau saying that accessing even just the metadata database is some kind of search requiring justification?”

This is a very important question.  It is  not answered in the New York Times article and without access to the secret FISA court decisions it is unlikely that anyone could reasonably divine what has developed behind locked doors.  I will attempt to add a further wrinkle to the question and posit a hypothesis.

To first understand this question one needs to examine what the “special needs” exception is not.  This exception, as applied, does not mean that a search has not taken place under the 4th amendment.  Cassidy v. Chertoff, 471 F.3d 67 (2nd Cir. 2006) discusses, in some detail, the special needs exception and its application in general to 4th amendment jurisprudence.  What we learn is that a person can have a reasonable expectation of privacy in the items the government wants to search.  However, the “special needs” exception can result in a finding that the search was reasonable under the circumstances. Thus, there is no 4th amendment violation despite a reasonable expectation of privacy.

However, as Orin Kerr dutifully points out, the devil is in the details when discussing 4th amendment cases.  The case I cited above applies to searches of a person and of their luggage.  When looking at the search of phony metadata there are other requirements at play than just the 4th amendment.  18 USC § 3121-3127 adds the further dimension that a tap and trace must be relevant to an ongoing criminal investigation amongst other requirements.*

Perhaps in order to satisfy this statute the FISA courts have adopted a standard that must be met by the government before collecting phony metadata.  It is also as equally plausible that the FISA court has found that the obtaining of the metadata is subject to the special needs exception and the tap and trace statute is only applied once the government wants to search the information it has collected.

So why is my article seem to indicate that there is a danger presented by the “special needs” doctrine?  Very simply because the “special needs” doctrine is extremely fact specific and here the facts and the laws are being executed and interpreted in secret.  This creates a hollowing out of your 4th amendment rights.

We know to date that citizens of the United States of America have had their rights violated by the federal government.  We know that there are decisions by the FISA courts indicating that such violations have taken place.  However, there is no remedy or even a right to know whose rights have been violated.  A right that cannot be enforced is not much of a right at all.  This is even more true when the very evidence of the violation is ordered to be destroyed and no citizen is made aware to what extent and under what authority their rights were violated.

Furthermore, citizens cannot adjudge what actions their government is taking and comport their future behavior to protect their privacy.  For instance, I know that if I use a ferry to transport myself across Lake Champlain my bags and my car may be searched.  If I have something I don’t want the government to know about (whether legal or illegal) I can comport my behavior to protect my privacy.  I can hire my own boat, I can drive around the lake, or I can choose to transport my luggage or car via any number of alternatives.  In connection with the NSA snooping I do not know under what standards my privacy is being invaded.  I cannot even attempt to comport my behavior to protect my privacy if I don’t know what items of mine the government is searching and under what theory they are conducting the search.

I understand the need to keep secrets so that the terrorists cannot attack American citizens.  However, if I cannot protect my rights from my government then my choice becomes the lesser of two evils.  Our founding fathers created limitations on our government as a bulwark against such choices.  We chose freedom over perfect security.  We saw that the search for perfect security gives the government powers that can and will be abused.  Open government, written laws, and open courts protect the citizens from overreach by their government.  Two of those very sacred protections are taken away from us under the FISA regime.  We are left to the whims of elected officials and are in danger of becoming a nation of men not a nation of laws.

*For a more comprehensive take on this law please see my article entitled “Smith v. Maryland and the NSA telephone number defense.”