In a case closely watched by the intelligence community and the media, the Justice Department urged a federal appeals court on Monday to leave in place a court ruling that gives reporters little protection from testifying against their sources in criminal prosecutions.
Federal prosecutors told the Virginia-based U.S . Court of Appeals for the Fourth Circuit that its ruling earlier this year in the case of former CIA operative Jeffrey Sterling should stand. Sterling’s accused of leaking classified information to New York Times reporter James Risen, whom prosecutors describe as the “only eyewitness to the crimes charged in the indictment.”
Risen’s been compelled to testify under orders that began under George W. Bush and continued into the Barack Obama administration. But his lawyers, citing new Justice Department guidelines that give reporters more protection from subpoenas, have pressed both Attorney General Eric Holder and the full 4th Circuit Appeals court to take another look at the issue. Risen’s position has attracted support and friend of the court briefs from media coalitions that include NPR.
But the Justice Department, for now at least, has refused to budge.
You don’t have to think Edward Snowden is a hero, to be horrified by the latest revelations about the secret workings of the court that approves the president’s many requests for surveillance. Or at least you shouldn’t have to think that.
But revelations by the New York Times and Wall Street Journal in the last few days about the sweeping yet secret workings of the FISA court, appointed solely by Supreme Court Chief Justice John Roberts, have gotten far less attention than Snowden’s original revelations – and far less than they deserve. The man who just presided over a genteel gutting of the Voting Rights Act, who is laying the groundwork for doing away with affirmative action and who may have led his liberal colleagues to dramatically curtail the power of Congress to compel state action with his Obamacare ruling, has huge sway over our national security machinery. He has appointed all the sitting judges, and 10 of 11 are Republicans, with no confirmation or even oversight by Congress. Both of Roberts’ roles are hugely influential, and disturbing.
Meet some of the FISA Judges
On Monday, Digby wrote about the anti-terror paranoia of the secret court’s former Chief Justice Royce Lamberth, who is retiring, as providing a window on the terror hysteria that allows such a fundamental civil liberties institution to be kept entirely secret. In a 2009 interview with the Washington Post, Lamberth broke down in tears as he described a secret briefing about a terrorist threat to Washington, D.C., that he received after 9/11. “My wife and friends live here,” he said. Digby noted that Lamberth’s wife and friends were far more likely to die in car or plane crashes than in terror attacks.
In 2000 the Chicago Tribune called him “Clinton’s judicial nemesis.” To kick off the Clinton years, Lamberth ruled that first lady Hillary Clinton’s healthcare reform task force broke the law by meeting in secret – which was then overturned by an appeals court. He fined health reform consultant Ira Magaziner almost $300,000 for not being sufficiently forthcoming about the makeup of the task force, which was also overturned on appeal. He gave Larry Klayman’s right-wing Judicial Watch his blessing to pursue specious lawsuits that let him depose Clinton administration figures from George Stephanopoulos to James Carville to fundraiser John Huang.
In 2000, he declared that Clinton had committed a crime by releasing private letters written by Kathleen Willey, who claimed he sexually harassed her – and an appeals court rebuked Lamberth. “It was inappropriate for the district court gratuitously to invoke sweeping pronouncements on alleged criminal activity that extended well beyond what was necessary to decide the matter at hand,” the court wrote.
Lamberth also ruled that Obama’s funding for embryonic stem cell research was illegal, which was also overturned. But when it comes to surveillance, he’s been on Obama’s side: Lamberth overturned two other FISA court judges and approved Attorney General Eric Holder’s request to obtain the personal and professional email of Fox News’ James Rosen in connection with a State Department leaks scandal in 2010.
Lamberth isn’t the only Republican-appointed FISA judge who’s shown a propensity to thwart Democrats in non-FISA work. Florida’s Roger Vinson struck down the Obama administration’s healthcare law in 2011 (the Roberts court overruled him). Vinson signed the fateful Verizon order. John Bates of Washington, D.C., was a Whitewater prosecutor. Arkansas Judge Susan Webber Wright held Clinton in contempt of court for lying under oath about his relationship with Monica Lewinsky
In all the recent controversy over the FISA court, Lamberth says only one thing bothers him: the intelligence community and Congress aren’t standing up for the court.
In the filing, embedded below, the Obama Administration Justice Department quotes with approval the Foreign Intelligence Surveillance Court’s own view of its power, expressed in 2007, that “[t]he FISC is a unique court … [o]ther courts operate primarily in public, with secrecy the exception; the FISC operates primarily in secret, with public access the exception.”
The filing, which comes in response to a June lawsuit from the ACLU, coincides with a critical profile by the New York Times that claims the FISA court has “become almost a parallel Supreme Court” with its own “secret body of law” that bolsters the powers of the NSA.
WASHINGTON — Justice Anthony Kennedy of the Supreme Court denied on Sunday a request from Proposition 8 supporters in California to halt the issuance of same-sex marriage licenses in the nation’s most populous state.
Justice Kennedy turned away the request with no additional comment.
Same-sex marriage opponents had asked Justice Kennedy to step in on Saturday, a day after the federal appeals court in San Francisco allowed same-sex marriages to go forward. Numerous weddings were performed at San Francisco City Hall after the court decisions. The appeals ruling came a day after the Supreme Court declined to decide the California case, effectively allowing same-sex marriages in the state.
The opponents said the appeals court had acted about three weeks too soon. Proposition 8 supporters could continue their efforts to halt gay marriage by filing their request with another Supreme Court justice.
President Obama will nominate a slate of three candidates on Tuesday to fill the remaining vacancies on the United States Court of Appeals for the District of Columbia Circuit, a White House official said Monday.
The president will name Cornelia T. L. Pillard, a law professor; Patricia Ann Millett, an appellate lawyer; and Robert L. Wilkins, a federal district judge, to fill out the appeals court, which is often described as the second most powerful court in the country because it decides major cases and often serves as a launching pad for future Supreme Court justices.
By making his choices in a group, the president and his strategists are hoping to put pressure on Senate Republicans to confirm them.
Mr. Obama is expected to announce the nominations at a Rose Garden ceremony on Tuesday morning, said the White House official, who spoke on the condition of anonymity because the nominations had not been announced.
Just to preempt certain criticisms, yes this policy was started by GW Bush. However that has little relevance so many years later. The Obama administration continued and now owns the policy. Fortunately the judges saw the light of civil liberty being protected from search without cause. Now the administration should accept the decision in good grace and change policy accordingly. I for one am not holding my breath. I expect Holder will appeal at his bosses insistence.
A federal appeals court for the first time ruled Friday that U.S. border agents do not have carte blanche authority to search the cellphones, tablets and laptops of travelers entering the country — a “watershed” decision in the court’s own terms and one at odds with the policies of the President Barack Obama administration.
The ruling by a divided 11-judge panel of the 9th U.S. Circuit Court of Appeals is the most significant privacy decision in the digital age following the Supreme Court’s ruling last year requiring authorities to get warrants to place GPS tracking devices on suspects’ vehicles. Under Friday’s ruling, for the first time digital devices are granted limited relief from the so-called “border search exception” of U.S. law that allows international travelers — including U.S. citizens and their luggage and vehicles — to be searched for any reason as they enter the country.
“A person’s digital life ought not be hijacked simply by crossing a border. When packing traditional luggage, one is accustomed to deciding what papers to take and what to leave behind,” Judge M. Margaret McKeown wrote (.pdf) for the 8-3 court. “When carrying a laptop, tablet or other device, however, removing files unnecessary to an impending trip is an impractical solution given the volume and often intermingled nature of the files. It is also a time-consuming task that may not even effectively erase the files.”
By using recess appointments President Obama got around the Senate and appointed three people to the National Labor Relations Board. The U.S. Court of Appeals for the D.C. Circuit says that the President violated the Constitution when he did that. From the article: “…GOP lawmakers gaveled in for a few minutes every three days just to prevent Obama from making recess appointments. The White House argued that the pro forma sessions — some lasting less than a minute — were a sham.” Read the article: news.yahoo.com
We’ve witnessed four years of a concerted effort by one party to cripple not only the executive branch but also the judicial by fighting every appointment no matter how small.
It’s not just obstructionism but a clear attack on two of our branches of government and an attack on our form of government and our constitution. It’s about time for any remaining moderate Republicans to realize that another four years of obstructionism will net us clogged courts, less efficient government, and a smaller GOP.
At this point it’s time for Senate Democrats to recognize that this cannot go on and for them to change the filibuster rules.
In September 2005, John G. Roberts Jr., a judge on the U.S. Court of Appeals for the District of Columbia, moved up a few blocks onto Capitol Hill to become chief justice of the United States. His seat on the appeals court has remained unfilled ever since.
The vacant seat symbolizes the problems that President Obama had in his first term in quickly nominating judges and winning even routine confirmations in the face of a determined Republican minority. He has had fewer judges confirmed than any first-term president in a quarter of a century, and he is the first chief executive unable to appoint anyone to the powerful D.C. Circuit Court of Appeals, which decides challenges to federal regulations.
Firmly in Republican control thanks in part to three appointees of President George W. Bush, the D.C. Circuit recently struck down clean-air rules put forth by the Obama administration for coal-burning power plants. It also threw out a “shareholder democracy” rule that would have made it easier for investors to vote for independent directors of public corporations. Both rules were strongly opposed by business interests.
Obstructionist GOP trying to block appointments indefinitely. It’s definitely past time for filibuster and other senate reforms.
Republicans and business groups told a federal appeals court Wednesday that President Barack Obama violated the Constitution earlier this year when he bypassed the Senate to fill vacancies in his administration.
Attorneys for the groups told a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that Obama abused his power in January when he made recess appointments to the National Labor Relations Board.
“I would suggest there is a huge cloud hanging over the National Labor Relations Board right now,” said Noel Francisco, attorney for the U.S. Chamber of Commerce and other groups challenging the action.
The case is an important test of presidential power and could determine whether the Senate can indefinitely block presidential appointments by refusing to adjourn. Senate Minority Leader Mitch McConnell of Kentucky came to watch the hearing in a packed courtroom. McConnell and 46 other Senate Republicans filed a friend-of-the-court brief arguing the appointments are invalid.
At issue: When is the Senate in session, when is it in recess and who gets to decide? Certain high-profile appointments must be confirmed by the Senate, but if lawmakers are away for the holidays or other breaks, the president can act on his own with a recess appointment.
A federal appeals court on Friday overturned the terrorism conviction of Salim Ahmed Hamdan, a former driver and bodyguard for Osama bin Laden whose case has been one of the most tangled to emerge from the war crimes trials of detainees held by the military at Guantánamo Bay, Cuba.
The court found that Mr. Hamdan’s conviction by a military commission for providing material support for terrorism could not stand because, under the international law of war in effect at the time of his actions, there was no such defined war crime.
The Military Commission Act, a law passed in 2006, does not authorize such retroactive prosecutions, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled.
The case of Mr. Hamdan, once considered a dangerous terrorist by the Bush administration, forced Congress to pass that 2006 statute in the first place.
Lawyers for Mr. Hamdan, a Yemeni who was captured in Afghanistan in 2001, had challenged his detention and won a landmark Supreme Court case in 2006 that found the military commission system for prosecuting war crimes unconstitutional and in violation of American military law and the Geneva Conventions. That forced Congress to rewrite the rules, leading to Mr. Hamdan’s trial and conviction in 2008. Because he had already served so long in prison, he was released later that year to Yemen, his home country.