Update to Doe privacy/national security appeal

The privacy case appeal, involving the Patriot Act, "national security letters" and judicial review powers, link here, (Doe v Mukasey; How Appealing, Lawdotcom), updating my earlier post, "Secret Government" was heard with skepticism on the part of a panel of 2d Circuit judges this Wednesday.

Excerpts from Lawdotcom:

Judge Calabrese expressed his concern to Assistant U.S. Attorney General Gregory Katsas that such language would permit the issuance of NSLs and gag orders in traffic safety investigations or operations seeking to determine if a state governor is patronizing prostitutes.

"Why isn't the appropriate thing to say that Congress here used, in a First Amendment sense, language that simply goes too far?" asked the judge.

The panel also expressed concern that the statute constrained judges reviewing such gag orders to uphold them unless they had "no reason to believe" any harm would arise from permitting disclosure.

Katsas countered that this standard could be "charitably construed" as "no good reason" and said the FBI's certification process was geared toward counterterrorism and national security concerns.

But Calabrese said he was particularly uncomfortable that gag orders could be certified by a special agent-in-charge, rather than a more senior FBI official.

"A special agent-in-charge is not someone who is directly responsible to the people," the judge said.

The ACLU brought the underlying case on behalf of a small Internet service provider served with an NSL several years ago. Jameel Jaffer, the director of the ACLU's national security project, told the court that gag orders were preventing many opposed to the Patriot Act's surveillance programs from speaking out.

But the judges pointed out that, of more than 40,000 NSLs issued, only three parties had complained about their inability to discuss them.

"Do we have any reason to believe there is anyone out there other than your client who is dying to make a speech about this?" Judge Sotomayor asked.

Government and Secrecy

A good one from New Republic, by Jack Goldsmith (Harvard Law School professor, and former Bush Administration appointee) titled Secrecy and Safety here.

A sample of the analysis:

A root cause of the perception of illegitimacy inside the government that led to leaking (and then to occasional irresponsible reporting) is, ironically, excessive government secrecy. "When everything is classified, then nothing is classified," Justice Stewart famously said in his Pentagon Papers opinion, "and the system b
becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on selfprotection or self-promotion." And he added that "the hallmark of a truly effective internal security system would be the maximum possible disclosure," noting that "secrecy can best be preserved only when credibility is truly maintained."

The Bush administration defied these precepts and suffered as a result.

The secrecy of the Bush administration was genuinely excessive, and so it was self-defeating. One lesson of the last seven years is that the way for government to keep important secrets is not to draw the normal circle of secrecy tighter. Instead the government should be as open as possible, and when secrecy is truly necessary it must organize and conduct itself in a way that is beyond reproach, even in a time of danger. In the end, not Congress, nor the courts, nor the press can force the government to follow these precepts. Only the president can do that.

Could someone please tell me what good has come from our secret, illegal, lying, spying programs, aka domestic and foreign "wiretapping" surveillance, about which the President and administration have lied, concealed and perpetrated with our money, right under our noses? From the politicization of justice and the economy that the administration has similarly perpetrated?

I have some ideas, but your comments are most welcome.

Maryland Secret Government

Speaking of secret government, check this out. Apparently, Maryland's Gov. Erlich was doing some of that too. Spying on Anti war and death penalty activists under the pretext of fighting terrorism. How the definition morphs!

Secret Government?

At this link is brief of amicus curiae, the National Archive (of Washington, D.C.) and Electronic Frontier Foundation, in the case of Doe v. Mukasey, on appeal from the US District Court, Southern District of New York. Summary of the argument: judicial review of government's demands for secrecy is necessary to protect the security of the nation and quality of government decision making.

The case has an aspect of interest for habeas watchers: it challenges an attempt by Congress to usurp the traditional role of the courts. Part of the AEDPA, governing federal judicial review of habeas corpus, does this also, and may well fall under fire from recent constitutional challenges.

Trends and Updates: More on Musladin

Google blogsearch Skilling (as in Jeffrey) for all the blogs on going straight to prison. It usually means getting an early start on the time, inevitably, to be served pending appeal. It is a significant blow, however, when the defendant has even a slight chance of winning remand or reversal on appeal.

A Poll, always interesting, about Government and Privacy here from Washington Post:

Sixty-six percent of those questioned said that the FBI and other agencies are "intruding on some Americans' privacy rights" in terrorism investigations, up from 58 percent in September 2003. Thirty percent think the government is not intruding on privacy.

Support for intrusive tactics has dropped even more significantly during that time. A bare majority, 51 percent, feel the tactics are justified, down from 63 percent three years ago.
The poll was conducted by telephone from Dec. 7 through Monday, and the results have a three-percentage-point margin of error.

RE: Carey v. Musladin (my earlier posting here -- opinion here Carey v. Musladin). Justice Thomas:

This Court has recognized that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial. Estelle v. Williams, 425 U. S. 501, 503-506 (1976); Holbrook v. Flynn, 475 U. S. 560, 568 (1986). In this case, a state court held that buttons displaying the victim’s image worn by the victim’s familyduring respondent’s trial did not deny respondent his rightto a fair trial. We must decide whether that holding was contrary to or an unreasonable application of clearly established federal law, as determined by this Court. 28 U. S. C. §2254(d)(1). We hold that it was not.

***Given the lack of holdings from this Court regarding thepotentially prejudicial effect of spectators’ courtroomconduct of the kind involved here, it cannot be said that the state court "unreasonabl[y] appli[ed] clearly established Federal law." §2254(d)(1). No holding of this Courtrequired the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to oran unreasonable application of clearly established federal law.

My thought: SCOTUS could simply decline to establish clear law, accomplishing the aim of making it impossible for lower courts to grant relief under the AEDPA standard. Indeed, Justice Thomas's opinion clearly reflects a reluctance to provide much, if any, guidance as to what the substantive law is. He has simply found no clearly established law on the issue and that is the end of the matter for him. Too bad that all SCOTUS cases are not so easy to resolve, and that two of the often "liberals," Justices Ginsberg and Breyer, joined in this swat against justice and stare decisis.

If the justices do not wish to discuss the substance of the law, what is and was, and what could or should be, then why grant cert at all? The answer in this case? Just to reverse the Ninth Circuit. How does this advance the stated goals of the Court's review powers?

The good thing might be that the case leaves open the door just a skosh for a similar claim in which better facts might be found. But what better facts could there be involving possible coercion, intimidation, in the courtroom? It would seem that there MIGHT be a matter of degree in question, but when it comes to coercion or intimidation it is hard to draw the line between how much is too much. The analogy is this: how much pain is too much? Just cut off the pinkie, maybe...or just the tip of the pinkie finger, that won't hurt quite as much.

The real lesson here is that you can not shoot and kill somebody and expect to get habeas relief afterwards. This is page 1, section I, para. 1 of the opinion: On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin’s estranged wife, Pamela. Game, set, match, checkmate, strike three, game over. Simple as that for this panel. That is not good news for the law. Because the point of the law is to make darn sure that you did the killing (with requisite intent), not that there was one.