Radical Idea: the Legislature Ends Smith v. Maryland

The Senate Judiciary Committee hearing with the NSA Review Group just finished. There was no earth-shattering news. Perhaps the best one-liner from the hearing came when former CIA Deputy Director Mike Morell said that metadata is content (and I’m grateful he said it early in the hearing so it will make the evening news). Bizarrely, he claimed he just learned that while working on this report which is rather … unconvincing.

At the very end of the hearing, however, Senator Richard Blumenthal said something equally as important, which went something like,

Smith v. Maryland is about as outdated as any Supreme Court [sic] can be. Congress has an equal responsibility to protect the Constitution as the Supreme Court. There is no need to wait for the Supreme Court.

It’s a great idea, for the legislature to end Smith v. Maryland’s encroachment on the Constitution, and he’s right, Congress does have the authority to act.

But as far as I know, Blumenthal has yet to introduce a bill doing that.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

12 replies
  1. bloodypitchfork says:

    OMG. A Congress cognizant of it’s equality with the SC???? Will wonders ever cease. Someone help me off the floor. Now, if they could only get the balls to stand up to the Executive.

  2. bloodypitchfork says:

    Hey ew. Your Michigan veggie soup is boiling over while you’re twittering. And don’t forget that new dress your working on too. My gawd. You’d think we don’t pay you enough. And check that fax while your at it goddamnit. I mean, your shift doesn’t end till midnight.

    sheeez.. give em an inch..

  3. Snoopdido says:

    Somewhat both on and off topic, the letters that Judge Bates, former presiding judge of FISC, sent to SSCI Chair Diane Feinstein regarding some of the proposed changes to the NSA’s warrantless dragnet surveillance of Americans and dissolution of our Constitutional rights, are truly gobsmacking in their claimed non-opinion opinions and interference in the political process of determining stuff like the our Constitutional 4th amendment rights, which laws Congress creates and generally who our 3 branches of government actually work for.

    Read ’em and weep:

    http://www.lawfareblog.com/wp-content/uploads/2014/01/1-13-2014-Ltr-to-DFeinstein-re-FISA.pdf

    http://www.lawfareblog.com/wp-content/uploads/2014/01/1-10-2014-Enclosure-re-FISA.pdf

  4. bloodypitchfork says:

    @Snoopdido:quote” Somewhat both on and off topic…”unquote

    Hey snoop, as long as you don’t confuse the latest football stadium statistics with national security your good. With all due respect mind you.

    quote:”Read ‘em and weep:”(snip)

    Dang it Snoop..what did I just tell you?

    :)

  5. ess emm says:

    @Snoopdido: Bates is a slacker! Let’s get a judge in there that’s not afraid of working.

    Drastically expanding the FISC’s caseload by assigning to it in excess of 20,000 administrative subpoena-type cases (i.e., NSLs) per year—even with a corresponding injection of resources and personnel—would fundamentally transform the nature of the FISC to the detriment of its current responsibilities.

    I mean, WTF. Bates apparently thinks actually providing oversight will transform the FISC from its role as rubber-stamp—and he doesnt like it! He loves his cushy, no heavy-lifting job.

  6. Snoopdido says:

    @ess emm: And then there is this:

    “It is important that the process for selection of FISC and Court of Review judges remain both expeditious and fully confidential; the Chief Justice is uniquely positioned to select qualified judges for those Courts.”

    In other words, according to Judge Bates all of those other Supreme Court Justices are not worth spit, and only the wonderful and just awesome Chief Justice Roberts is worthy of picking folks like me to sit on the FISC or the FISCR.

  7. ess emm says:

    @Snoopdido: Which he then follows with this little beauty.

    Care should be taken not to place the Court in an “oversight” role that exceeds their Constitutional responsibilities to decide cases and controversies.

    The scare quotes around oversight are priceless.

    Of course, that’s at odds with what the figure known as Obama said on 8/23/13.

    And what’s been clear since the disclosures that were made by Mr. Snowden is that people don’t have enough information and aren’t confident enough that, between all the safeguards and checks that we put in place within the executive branch, and the federal court oversight that takes place on the program, and congressional oversight, people are still concerned as to whether their e-mails are being read or their phone calls are being listened to.

  8. C says:

    @ess emm: In the not so good judge’s defense his notion of “oversight” may actually be more nuanced. There is oversight of the law ie. whether an action is legal and then there is policy or legislative oversight i.e. whether we are getting what we want from otherwise legal acts. It is possible, just possible, that he is worried that congress will continue to punt on actually doing their job by trying to make it his job.

    Given that the FISA court, and Bates himself it seems, has been bad at his current gig I certainly don’t want them to do more.

  9. bloodypitchfork says:

    @ess emm: “I mean, WTF. Bates apparently thinks actually providing oversight will transform the FISC from its role as rubber-stamp—and he doesnt like it! He loves his cushy, no heavy-lifting job.”unquote

    WTF indeed. What I STILL don’t understand is WHY the FISC is being inundated with NSL’s, when another Judge has already ruled that NSLs are..wait for it…UNCONSTITUTIONAL!

    https://www.eff.org/press/releases/national-security-letters-are-unconstitutional-federal-judge-rules

    Anyone have further info on this?

  10. C says:

    @bloodypitchfork: Strictly speaking the U.S. District court judge in San Francisco ruled it “likely unconstutional”. That decision however is stayed pending an appeal so the program can continue in the meantime. From some reporting:

    U.S. District Court Judge Richard Leon found that the program appears to violate the Fourth Amendment ban on unreasonable searches and seizures. He also said the Justice Department had failed to demonstrate that collecting the information had helped to head off terrorist attacks.

    Acting on a lawsuit brought by conservative legal activist Larry Klayman, Leon issued a preliminary injunction barring the NSA from collecting so-called metadata pertaining to the Verizon accounts of Klayman and one of his clients. However, the judge stayed the order to allow for an appeal.

    http://www.bradblog.com/?p=10423

    However at around the same time a district court judge in New York found that the programs were legal and could stop terror attacks.
    http://www.washingtonpost.com/world/national-security/nsa-collection-of-phone-data-is-lawful-federal-judge-rules/2013/12/27/4b99d96a-6f19-11e3-a523-fe73f0ff6b8d_story.html

    Because these are separate circuits (9th and 2nd) neither decision overrides the other and thus the decisions stand in conflict. Under ordinary cases these rulings would have to be appealed to their respective circuit courts of appeal and then on to the Supremes. However the Larry Klayman the advocate who brought the case in San Francisco has moved to have both cases jump directly to the Supremes so that the issue can be resolved directly.

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