A Couple Legal Thoughts

by: Matt Singer

Sun Jul 08, 2007 at 14:48:30 PM MST

1. Wiretapping. The ACLU has assembled a bunch of folks, ranging from attorneys to journalists to non-profit employees, who sued over the Bush Administration's illegal wiretapping. After winning in District Court, the ACLU's victory was overturned recently by a panel on the 6th Circuit which ruled against it on the narrow grounds of standing, arguing that because the plaintiffs could not prove that they were targets of surveillance that they could not prove harm.

   Given that we currently live in the country where the Congress has authorized the Executive to declare people enemy combatants and remove their right to Habeas Corpus, this is a major, major problem. The people with the standing to sue would be people positive that they are being monitored. In order to know that, assumedly they would need to be the target of government action. If that's the case, they may very well be locked up. In other words, there is no opportunity for recourse.

   Strangely, the 6th circuit opinion essentially admits as much:

   The plaintiffs? third alleged injury is the NSA?s violation of their legitimate expectation of privacy in their overseas telephone and email communications.

   [...]

   This third kind of injury, unlike the other two, is direct and personal; under this theory, the NSA has directly invaded the plaintiffs? interest and proof of such invasion is all that is necessary to establish standing.  If, for instance, a plaintiff could demonstrate that her privacy had actually been breached (i.e., that her communications had actually been wiretapped) standing to assert a Fourth Amendment cause of action for breach of privacy. In the present case, the plaintiffs concede that there is no single plaintiff who can show that he or she has actually been wiretapped.  Moreover, due to the State Secrets Doctrine, the proof needed either to make or negate such a showing is privileged, and therefore withheld from discovery or disclosure. This injury is not concrete or imminent under these circumstances, and this opinion focuses on the plaintiff's two other alleged injuries.

   Even worse, the court continues by considering whether simply the idea that the government is listening in would change people's behavior -- and whether the expectation of privacy's undermining is itself a harm. But the court quickly rejects that line of inquiry, simply saying again that there is no proof of government interception of the communications.

   That's fair, except that there is a loss to privacy if a reasonable person believes their privacy is being infringed. That's the harm.

   But the court goes on, declaring the entire lawsuit a "ruse" and claims that the plaintiffs "concede" that "they clearly cannot establish standing under the Fourth Amendment or FISA." In reality, the footnotes prove no such thing and plaintiff conceded no such thing. They conceded only that it would be unprecedented to be granted standing for a 4th Amendment claim without proof of being surveilled. Of course, as far we know, the entire wiretapping program under lawsuit is unprecedented. So precedents might need to, um, change.

   Call me crazy, but under the majority ruling here, I'm hard-pressed to see how it wouldn't be feasible for the White House to declare an intention to start "disappearing" Americans, but to do it in such a covert way that there is no way of knowing whether an individual who has simply disappeared one day was the victim of a government killing or kidnapping. Family members would not be able to prove harm because they could not tie the previous victims necessarily to the policy. Others fearing being killed would not be able to sue to pre-empt it because the harm would be simply speculative.

   At the end of the day, the question for the court is simply this -- do Americans have an expectation of privacy or not? If we do, then as the dissenting opinion notes, having a reasonable belief that our privacy is being violated -- even if we cannot prove it -- is the same as the actual violation, because in both cases, our expectation has been undermined -- a real and particularized harm.

   Unfortunately, once again, right-wing judges have decided that the burden rests on citizens, not on the government, to make a case.

   That's why this decision is Kafkaesque.



2. Scooter Libby. So what's going on with Scooter Libby? Wasn't he a swell guy screwed over and Bush has now done the proper thing, cut the baby in half, and created a situation where we can all smile? Oh, and wasn't that whole Marc Rich pardon just too much (teh Clenis!)?

   Unfortunately, our nation has lost its mind. Libby, indicted and found guilty of obstruction of justice in an investigation into matters involving national security, was sentenced according to the federal sentencing guidelines (Clinton, by the way, was never indicted or found guilty on charges of obstruction of justice or perjury, he was impeached by the House, but the Senate refrained from removing him from office; additionally, Clinton was accused of perjury and obstruction, as near as I can tell, over an issue with no underlying crime, whereas Libby was convicted of obstructing an investigation into whether he or his superiors -- the most powerful men on the planet -- had undermined American national security through the intentional outing of a covert CIA agent).

   Bush, contrary to claims, did not pardon Libby. Even this wasn't a "balanced" move, no matter how the Bush Administration tries to push it. It was also not a result of Libby facing a harsh punishment. Libby's sentence was well within the norm for a conviction for obstruction of justice.

   But the commutation serves a very important purpose. As long as an individual is facing judicial consequences for their actions, they are extended special rights in this country (this is a good thing), like protection from self-incrimination. Libby, therefore, cannot be hauled in front of Congress currently to testify regarding the case.

   And so, in that sense, something big has happened here. I recently mocked Eric of WRIM for saying Scooter "simply obstructed justice." Eric got his facts wrong -- Libby did leak the identity of an undercover CIA agent. But more importantly, he managed to discuss "obstructing justice" as though it was no big deal.

   The prosecutor, Patrick Fitzgerald, handled that question in some length during the press conference announcing the indictment:

   Well, why is this a leak investigation that doesn't result in a charge? I've been trying to think about how to explain this, so let me try. I know baseball analogies are the fad these days. Let me try something.

   If you saw a baseball game and you saw a pitcher wind up and throw a fastball and hit a batter right smack in the head, and it really, really hurt them, you'd want to know why the pitcher did that. And you'd wonder whether or not the person just reared back and decided, "I've got bad blood with this batter. He hit two home runs off me. I'm just going to hit him in the head as hard as I can."

   You also might wonder whether or not the pitcher just let go of the ball or his foot slipped, and he had no idea to throw the ball anywhere near the batter's head. And there's lots of shades of gray in between.

   You might learn that you wanted to hit the batter in the back and it hit him in the head because he moved. You might want to throw it under his chin, but it ended up hitting him on the head.

   And what you'd want to do is have as much information as you could. You'd want to know: What happened in the dugout? Was this guy complaining about the person he threw at? Did he talk to anyone else? What was he thinking? How does he react? All those things you'd want to know.

   And then you'd make a decision as to whether this person should be banned from baseball, whether they should be suspended, whether you should do nothing at all and just say, "Hey, the person threw a bad pitch. Get over it."

   In this case, it's a lot more serious than baseball. And the damage wasn't to one person. It wasn't just Valerie Wilson. It was done to all of us.

   And as you sit back, you want to learn: Why was this information going out? Why were people taking this information about Valerie Wilson and giving it to reporters? Why did Mr. Libby say what he did? Why did he tell Judith Miller three times? Why did he tell the press secretary on Monday? Why did he tell Mr. Cooper? And was this something where he intended to cause whatever damage was caused?

   Or did they intend to do something else and where are the shades of gray?

   And what we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He's trying to figure what happened and somebody blocked their view.

   As you sit here now, if you're asking me what his motives were, I can't tell you; we haven't charged it.

   So what you were saying is the harm in an obstruction investigation is it prevents us from making the fine judgments we want to make.

   I also want to take away from the notion that somehow we should take an obstruction charge less seriously than a leak charge.

   This is a very serious matter and compromising national security information is a very serious matter. But the need to get to the bottom of what happened and whether national security was compromised by inadvertence, by recklessness, by maliciousness is extremely important. We need to know the truth. And anyone who would go into a grand jury and lie, obstruct and impede the investigation has committed a serious crime.

   Now, as I already noted, Libby hasn't been pardoned. That means he still has a criminal conviction that he is appealing. Obviously, that means George W. Bush split the baby with Herodian wisdom, right? Wrong. That criminal conviction keeps him from testifying still about what happened. And it also keeps him from cutting a deal to avoid jail time, since he is no longer facing prison.

   In other words, George W. Bush just kicked more sand in the umpire's face. Bush himself just obstructed justice.

   It has been noted by some, including Fitzgerald (the prosecutor) himself, that the Presidential power of the pardon (including commutation) is absolute. In other words, it's not up for judicial review. That's true, but it does not mean that abuses of the power are without remedy.

   In fact, the founders themselves foresaw this very issue. In Virginia, considering the Constitution, George Mason (who drafted the "high crimes and misdemeanors" wording of the impeachment clause) raised the question of a President who pardons those involved in crimes he had advised for the purpose of "stop[ping] inquiry." James Madison responded, "[I]f the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty..." In fact, Madison went so far as to call for the President to be suspended in such instances, along with the Vice President, if need be -- and to let the line of succession kick in so that Americans would not have a tainted President.

   Is impeachment the answer? We can't be sure of that yet. But Congress needs to keep the possibility on the table -- and begin serious inquiries into these issues.