Homeland Security Watch

News and analysis of critical issues in homeland security

November 6, 2014

Klayman appeal

Filed under: Intelligence and Info-Sharing,Legal Issues,Privacy and Security — by Philip J. Palin on November 6, 2014

Tuesday oral arguments were heard by the Federal Appeals Court for the DC circuit in a key case related to NSA mass surveillance.

Last December, finding for the plaintiffs in Klayman v Obama, Federal District Judge Richard Leon wrote,

I cannot imagine a more “indiscriminate” and “arbitrary invasion” than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely such a program infringes on that “degree of privacy” that the Founders enshrined in the Fourth Amendment.  Indeed,  I have little doubt that the author of our Constitution, James Madison, who cautioned us to be beware “the abridgement of freedom of the people by gradual and silent encroachments by those in power,” would be aghast. (Prior attention by HLSWatch)

Judge Leon stayed his injunction of further surveillance of citizen phone records pending appellate review, given the national security implications and, what the Judge called, “novel” privacy implications of the case.

Josh Gerstein, writing in Politico of Tuesday’s proceedings, perceives:

During oral arguments Tuesday, three judges of the U.S. Court of Appeals for the D.C. Circuit seemed skeptical in various ways about the lawsuits that led to U.S. District Court Judge Richard Leon’s ruling last December that the NSA’s surveillance was likely unconstitutional.

Reporting for The Hill, Julie Hattem seems to agree:

Critics of the National Security Agency’s most embattled program harshly condemned the spying in a top appeals court on Tuesday. Judges, however, seemed largely skeptical of their claims that the spy agency’s bulk collection of Americans’ phone records was unconstitutional. Instead, they seemed to express a desire to reverse a lower court ruling nearly one year ago that called the NSA program “almost Orwellian.”

An audio recording of Tuesday’s Oral Arguments is available here.  I have not yet seen a transcript. Writing at the always informative Lawfare blog, Wells Bennett provides his own summary of the arguments.

Mr. Bennett is less inclined than the reporters quoted above to hear a predisposition in the three judge panel’s line of inquiry.  Bennett notes, “the day’s questioning was even-handed and vigorous, and exposed weaknesses in arguments advanced by both the government and plaintiffs alike…”

Before the end of the year appellate decisions are expected in three cases emerging from the Snowden revelations: Klayman v Obama, ACLU v Clapper, and Smith v  Obama.  If all meet with similar appellate findings, then no Supreme Court review is likely.  If they disagree — and depending on the nature of the disagreement — the Supreme Court is more likely to take action to resolve.

Late last year, just before the Klayman decision, Edward Snowden commented to the Washington Post, “For me, in terms of personal satisfaction, the mission’s already accomplished,” he said. “I already won. As soon as the journalists were able to work, everything that I had been trying to do was validated. “

A buddy in the intelligence community insists, “Snowden has made all of us less secure.”  A long-time lawyer complains of domestic surveillance, “It’s like an ulcer.  Maybe it originated with external stress, but now it’s eating us from the inside.”

What’s the right balance?  The courts are being asked to decide.

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4 Comments »

Comment by Christopher Tingus

November 6, 2014 @ 7:51 am

This is a portion of the speech that President John F. Kennedy gave at the Waldorf-Astoria Hotel on April 27, 1961.

“The very word “secrecy” is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it.

Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions.

Even today, there is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon those anxious to expand its meaning to the very limits of official censorship and concealment. That I do not intend to permit to the extent that it is in my control. And no official of my Administration, whether his rank is high or low, civilian or military, should interpret my words here tonight as an excuse to censor the news, to stifle dissent, to cover up our mistakes or to withhold from the press and the public the facts they deserve to know.

For we are opposed around the world by a monolithic and ruthless conspiracy that relies on covert means for expanding its sphere of influence–on infiltration instead of invasion, on subversion instead of elections, on intimidation instead of free choice, on guerrillas by night instead of armies by day. It is a system which has conscripted vast human and material resources into the building of a tightly knit, highly efficient machine that combines military, diplomatic, intelligence, economic, scientific and political operations.

Its preparations are concealed, not published. Its mistakes are buried not headlined. Its dissenters are silenced, not praised. No expenditure is questioned, no rumor is printed, no secret is revealed.

No President should fear public scrutinity of his program. For from that scrutiny comes understanding; and from that understanding comes support or opposition. And both are necessary. I am not asking your newspapers to support the Administration, but I am asking your help in the tremendous task of informing and alerting the American people. For I have complete confidence in the response and dedication of our citizens whenever they are fully informed.

I not only could not stifle controversy among your readers– I welcome it. This Administration intends to be candid about its errors; for as a wise man once said: ‘An error does not become a mistake until you refuse to correct it.’ We intend to accept full responsibility for our errors; and we expect you to point them out when we miss them.

Without debate, without criticism, no Administration and no country can succeed– and no republic can survive. That is why the Athenian lawmaker Solon decreed it a crime for any citizen to shrink from controversy. And that is why our press was protected by the First (emphasized) Amendment– the only business in America specifically protected by the Constitution– not primarily to amuse and entertain, not to emphasize the trivial and sentimental, not to simply “give the public what it wants”–but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mold educate and sometimes even anger public opinion.

This means greater coverage and analysis of international news– for it is no longer far away and foreign but close at hand and local. It means greater attention to improved understanding of the news as well as improved transmission” –

And it means, finally, that government at all levels, must meet its obligation to provide you with the fullest possible information outside the narrowest limits of national security…

Comment by Christopher Tingus

November 6, 2014 @ 8:17 am

My reply, “Access to information in this 21st technological revolution has perpetrated a greater abyss among mankind rather than bringing humanity to close cooperative and logical, cohesive reasoning” –

Relative to the controversy among many as to secrecy and government and the individual, long ago in history and to my fellow Hellenes, the following worthy of your consideration:

Solon

Solon was a very popular lawmaker and statesman; he was born in 638 BC and made many very important political reforms during his time. While many things he put into place were unsuccessful, he is credited having brought about the foundations of democracy.

Not much is known about his life before his political career, but he is said to have been very wise which put him above his peers. He started his career in a time of turmoil and social, economic, and political decline in Athens. The system of the 9 Archons was failing and needed serious reforms. Solon was elected into the position of Archon in 594 BC. He was later given a high position among the Archons because they believed he could bring great change to Athens. He started by releasing many poor people from debt, ending debt slavery, established a court of appeals, and redefined political rights by wealth instead of birth. He used a system based on wealth to pick who could run for offices. The two richest of 4 groups could hold public office while the others too sat in an assembly that elected those officials. This was the first government system to include all the people, not just the aristocrats and wealthy.

Cleisthenes

Cleisthenes was a noble from Athens and the grandson of the tyrant of the same name. He is known as the “father of Athenian democracy” for his reform to the Athenian constitution. Cleisthenes rose to power after overthrowing the tyrant Hippias, after a short struggle for power and the exile that followed, he assumed power in Athens.

Cleisthenes’ reforms were effective and entirely changed the governmental system of Athens. He increased the power of the assembly and decreased the authority of the nobles. He also divided the citizens and set up the 10 tribes of Athens. Each tribe elected 50 men a year for the newly created Council of the 500. The council proposed laws, but the assembly had the ultimate authority over whether or not they were passed. He also changed the courts, jurors were chosen by lot, men could plead their case before the jury, and the jury voted by secret ballot. These changes were very effective and helped Athens evolve into the thriving Greek super-power we remember today.

Pericles

Pericles was one of the most influential people in the city of Athens. He was a great general and statesman, active in public office from 461 to 429 BC. This was considered a golden age in Athens and is commonly referred to as “The Age of Pericles”.

Pericles brought great change to Athens, and much of Greece, and is responsible for many public monuments still known today, such as the Parthenon and the Acropolis. Athens reached its peak of wealth, power, and size during his time.

Pericles affected many aspects of Athens, including its democracy system. Under Pericles Athens became one of the most completely democratic nations in history. All people except the lowest class could hold office, officeholders were paid and chosen by lot so to be fair.

The Athenian units of weight and measurement became the standard throughout the empire.

Pericles brought prosperity and stability to the area and used the Delian League to extend the empire of Athens. His plan to unit Greece failed, however, causing the Peloponnesian War with Sparta, a rival city-state. Pericles died in a plague during the siege of Athens.

Socrates

Socrates is often credited with being the founder of western philosophy. He completely revolutionized the Greek way of thinking and was well loved by most. He had powerful enemies and his own wisdom lead to his downfall.

Socrates had a completely different approach to the field of education, he taught that education was the key to personal growth and to grow, people must be taught to think. He believed his students should be taught to think for themselves, rather than use memorization as a teaching tool. This became known as the Socratic Method and is very popular in philosophical studies today. Socrates did remarkable work into the study of ethics and laid the foundations for all future study of the subject.

Socrates openly criticized the democratic system, stating that unskilled or unknowing people should not be in charge. Socrates also asked questions of officials and leaders that made them look unknowledgeable and stupid. This lead to growing resentment against him by those with power. His enemies accused him of corrupting the youth of Athens and denying the existence of the Greek gods. He was condemned and hung in 399 BC.

Plato

Plato is the most successful student of Socrates and one of the few sources of information about him. Plato founded the Academy of Athens, the first institution of higher learning in the Western world, where Aristotle and many other famous philosophers studied. Instead of writing research books like many of his time, Plato wrote dialogues, or an imaginary discussion of a topic between people. He wrote of government, education, justice, and religion.

Plato’s most famous teaching was the “Theory of Forms,” which was a controversial topic of the time. He taught that nothing in this world is perfect, just modeled after perfect and universal ideas or “forms.” Because humans have flaws of the senses, Plato believed that true philosophers searched for perfect knowledge that was incapable of being learned in the physical world. He believed perfection could only be achieved by a divine form, or God. Plato also discussed politics.

Plato believed that an aristocracy system would be best, but instead of rile based on wealth or power, people would be chosen for their wisdom, ability, and high ideals. His school became one of the most important schools of philosophy in the entire world.

___________

Submitted by
Christopher Tingus
PO Box 1612
Harwich (Cape Cod), MA 02645 USA
chris.tingus@gmail.com
google: christopher tingus

Comment by Christopher Tingus

November 6, 2014 @ 9:33 am

By the way, a most serious matter with the majority of some remaining 148 Gitmo detainees originating from Yemen and this perverse and divisive WH and eight year resident so contrary to sustaining our global prominence as well as security with open borders and not one call to the Mexican President to assure the release of our brave US Marine warrior held for so long until others intervened….

….coupled with the expeditious release by this White House of a suspected deserter and the release of known criminals, known terrorists, actual strategic planners whose primary goal is to attack US interests, what worries me in Not our committed and patriotic “intel” community and those at NSA who tirelessly night and day protect this beloved Republic in so many ways unknown to those on “Main Street USA” – I strongly support NSA monitoring of the White House itself and this administration who intent is to release at least another four dozen detainees so that the remaining one hundred or so can be transferred to a prison (hopefully) and Gitmo closed….

Mistrust of this WH administration and particularly Barry Obama demands that NSA and all intel folks keep a very watchful eye on this White House so hell bent on releasing convicts from HLS to walk among us as well as the worst of the worst in terrorists, enemies of the United States so easily released and now 148 remaining terrorists being held at Gitmo and many on “Main Street USA” very much proponents of those at NSA and the intel community where this WH has thrown our most devoted under the bus more than once and we here on “Main Street USA’ truly worry about just what this eight year resident will do with these known enemies of the United States – we certainly cannot afford the White House releasing any more known terrorists back to planning and conducting attack on America!

We have laws and they must be enforced!

We have much Respect and esteem for those at NSA and throughout our global intel community and while we must all Respect individual Rights, given the actions of this White House and the “apologies” extended to the Islamic community by this Chicago city street slicker and nothing more, Yes, limits to NSA surveillance may be in order and all such surveillance issues addressed by the Congress and Senate behind closed doors initially, however there is much concern about these remaining 148 detainees at Gitmo ad just what adverse and contrary action might be taken by Barry Obama to further cause justified concern!

Comment by William R. Cumming

November 6, 2014 @ 10:41 am

Thanks Phil for thoughtful post and Chris for excellent summary.

First, while the communications and surveillance sector of the DEEP STATE not a specific expertise of mine clearly it WILL be a very different country id SCOTUS abolishes the 4th AMENDMENT to the CONSTITUTION by its decisions.

Already the lengthy period since 9/11/01 and the Judiciary inactivity on NATIONAL SECURITY ISSUES AND POLICIES IS APPALLING.

ClearLy the US Judiciary is largely ignorant of the
NATIONAL SECURITY STATE!

DEFERENCE to SECRECY began with the AUGUST 1945 EXPLOSIONS. And the long struggle against FACISM and COMMUNISM taught the NATIONAL SECURITY STATE many lessons.

Highly recommend the biography of George Kennen by Yale Professor John Lewis Gaddis for insights as to the complexity of the struggle.

But by largely giving the NATIONAL SECURITY STATE a pass the Judiciary allowed self-regulation by the NSS to occur with no external Judicial review.

A weak and passive and corrupt CONGRESS also assisted in giving the NSS a pass!

So where does that leave US? The answer is known only to the future. But election of Governors ignorant of FP and the military is not a help!

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