Tag Archives: Obama

SCOTUS Opinion Alert: In Which Transparency is Dealt a Body Blow

Obama on Phone

How do you know he’s not listening in on your conversations? Answer: you don’t.

 [Photo by Pete Souza, found via the Council on Foreign Relations]

For those of us who believe that the government needs to be more transparent in matters of national security, yesterday was not a very good day. In its first 5-4 opinion of this term, the Supreme Court split along ideological lines and ruled in favor of protecting a wide-ranging international surveillance program from constitutional challenges. Specifically, the Clapper v. Amnesty International opinion makes it much more difficult for lawyers, journalists, and human rights practitioners who suspect the United States of wiretapping their communications with non-Americans abroad to bring suit for such governmental behavior unless they have concrete proof that their correspondence will be intercepted.

At issue in Clapper is the Foreign Intelligence Surveillance Act (FISA), which allows the United States to target the communications of non-citizens on foreign soil. First authorized in 1978, FISA originally limited the Government to instances where it could show probable cause (to a special closed court known as a Foreign Intelligence Surveillance Court) that its individual targets were “foreign powers or the agents of foreign powers.”  In 2008, however, Congress amended FISA to include Section 1881a, a provision which removed the probable cause requirement and greatly expanded both the pool of people and the kinds of communications that could be monitored.

While FISA is aimed at foreign nationals who fall outside the protection of the Fourth Amendment, one effect of the law was the warrantless interception of thousands of international communications between FISA targets and American citizens. Shortly after the passage of 1881a, a group of American legal, labor, media and human rights organizations led by Amnesty International asked the Supreme Court to overturn that provision. Claiming that they frequently communicate with non-American clients, coworkers, witnesses and sources abroad, the challengers argued that this law violated their First and Fourth Amendment rights.

Before they could even get to the constitutionality of 1881a, however, the challengers ran into a practical problem: because of the secrecy involved in such surveillance programs, they couldn’t find any hard evidence that the United States was actually looking at their correspondence. Since Article III of the Constitution requires that you show some “injury” before you can bring a suit, Amnesty International argued that the injury lay in the “objectively reasonable likelihood” their conversations were or might be intercepted. The challengers further claimed that they had suffered numerous economic and professional harms in trying to avoid these interceptions, such as having to fly abroad to speak with clients in-person rather than over phone or email, and the reluctance of sources to disclose information in light of the potential eavesdropping. In response, the United States claimed that no one in this group had standing to bring this lawsuit, because (1) FISA targets only non-Americans, and (2) they simply could not prove that they were being intercepted. After the Second Circuit agreed with Amnesty International, the United States brought an appeal.

 Justice Alito

Justice Samuel Alito, a huge fan of certainty.

[Photo via Columbia Law School]

Justice Alito’s opinion, which was joined by Chief Justice Roberts and Justices Scalia, Thomas and Kennedy, reverses the Second Circuit ruling by accepting the Government’s stance that the challengers’ claimed injuries were too speculative to allow the suit to continue to trial. Alito found the Second Circuit’s “objectively reasonable likelihood” standard inconsistent with his reading of Supreme Court precedents, which he believes require a (much harder to show) “certainly impending” injury in order to establish standing. Ignoring the fact that it would be nearly impossible for any American to prove that the Government will monitor his correspondence under 1881a, Alito repeatedly emphasized that the challengers’ fears of future surveillance were nothing more than a “highly attenuated chain of possibilities.” Likewise, Alito brushed aside the fact that some of the challengers’ foreign contacts included the friends and family of Guantanamo detainees (including rather high-profile clients like Khalid Sheikh Mohammed and Mohammedou Ould Salahi) whose communications had already been monitored by the United States.

The majority opinion was also quite unsympathetic to the increased economic and professional costs of operating under 1881a, despite the fact that lawyers and journalists have an ethical duty to protect confidential communications with clients and sources:

“[The challengers] cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending… Because [they]do not face a threat of certainly impending interception under 1881a, the costs that they have incurred to avoid surveillance are simply the product of their fear of surveillance.”

Naturally, the liberal wing of the Court, which had vociferously questioned the United States at oral argument about the fairness of a law for which virtually no one has standing to challenge, took issue with all parts of the majority opinion. The Justice Breyer-penned dissent also looked to precedent and rejected the majority’s “certainly impending” injury standard in favor of a “reasonable probability” or “high probability” injury standard:

“…[C]ertainty is not, and has never been, the touchstone of standing. The future is inherently uncertain. Yet federal courts frequently entertain actions for injunctions and for declaratory relief aimed at preventing future activities that are reasonably likely or highly likely, but not absolutely certain, to take place. And that degree of certainty is all that is needed to support standing here.”

Breyer went on to list no fewer than 18 cases in which federal courts found standing even where the likelihood of injury was “far less certain than here.” In addition, he argued that under the Supreme Court’s 2010 decision in Monsanto Co. v. Geertson Seed Farms, “reasonable efforts to mitigate the threatened effects of the future injury”–i.e., the economic costs that the 1881a challengers incurred in trying to keep their communications confidential–could constitute an injury sufficient enough for standing. Looking at the Government’s motive, capabilities and previous actions under 1881a and some other “commonsense inferences,” the dissent concluded that the challengers had in fact met the “reasonable probability” of injury standard and should have been allowed to contest 1881a’s constitutionality at trial.

Unfortunately, the dissenting justices were unable to convince a fifth colleague over to their side, meaning that the federal government is now incentivized to take one more step away from transparency. In his opinion, Justice Alito countered this concern by choosing to place his faith in the special Foreign Intelligence Surveillance Courts, which he believes will keep the Government accountable to the Constitution. As Justice Breyer’s dissent pointed out, however, these closed, secret courts (which do not make their hearings or records available to the public) very rarely reject any of the Government’s surveillance plans, and should not be the only safeguard for Americans’ civil liberties.  Nonetheless, the message that the Supreme Court sent yesterday is clear: the more secretive the United States keeps its national security programs, the safer they are from constitutional challenges, and the harder it is for ordinary Americans to vindicate what may be flagrant violations of their rights. We should all be very scared.

Almost There: Supreme Court to Decide Whether to Hear DOMA, Prop 8 Cases

Karen Golinski, a federal employee in California, and her wife Amy Cunninghis.  Golinski is one of the plaintiffs challenging the Defense of Marriage Act. (Photograph by Jim Wilson/The New York Times.)

Tomorrow, the Supreme Court is expected to decide whether to hear a same-sex marriage case this term. While the Court has an array of petitions to choose from–five Defense of Marriage Act (DOMA) cases, the California Proposition 8 challenge, and an Arizona state benefits case are all on deck–it looks likely that at least one DOMA case will get the nod if it does tackle the issue. (And not just because Justice Ruth Bader Ginsburg predicted it would earlier this year.) The Proposition 8 case, Hollingsworth v. Perry, may be flashier, but it concerns a constitutional amendment that affects only same-sex marriages in California. On the other hand, DOMA creates a conflict between the federal government and any state that recognizes same-sex marriage, a group that has now grown to nine (plus the District of Columbia) and counting. As the number of legally married gay couples continues to climb, it is in the interests of the Supreme Court to decide DOMA’s constitutionality sooner rather than later.

Should the Court hear a DOMA challenge, what will be at stake for both sides? The five DOMA cases all arise from a dispute between state and federal definitions of marriage, which has been steadily brewing since the 1996 passage of the Defense of Marriage Act. While family law has traditionally been left to the states, Section 3 of DOMA defines “marriage” for federal purposes as a legal union between one woman and one man, and a “spouse” as an opposite-sex husband or wife. In the places that have recognized marriages between two women or two men, however, same-sex spouses find themselves caught in a strange limbo where they are legally married in the eyes of the state but not in the eyes of the federal government. They receive all the state benefits and privileges that marriage affords, but DOMA prevents them from enjoying the many federal benefits of marriage* that their heterosexual counterparts receive, including Social Security survivors’ benefits, joint income tax filings, shorter green card waiting times for non-citizen spouses, freedom from estate taxes on a deceased spouse’s assets, and family coverage on federal employer health insurance plans.

The DOMA challengers from Massachusetts (Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services), New York (Windsor v. United States), Connecticut (Pedersen v. Office of Personnel Management) and California (Golinski v. Office of Personnel Management) are a sympathetic bunch. They include a federal government employee wishing to enroll her family in her health insurance plan, a senior hit with over $300,000 in federal estate taxes for an inheritance left by her wife, and a veteran denied Family Medical Leave Act time off to take a sick spouse to medical treatments. The challengers argue that the differential treatment between opposite-sex and same-sex married couples violates the Equal Protection Clause, and that the federal government impinges on states’ rights by refusing to recognize same-sex marriage where states have chosen to legalize it. In all five cases, the federal appellate circuit courts agreed with them. On the other hand, the supporters of DOMA maintain that the federal government has a right to its own definition of marriage for the purposes of federal funding and programs, and that DOMA merely reaffirms what the executive and judiciary branches have always believed: namely, that marriage can only be between a “traditional male-female couple.”

Less work for Eric Holder. (Photograph by Brendan Smialowski, AFP/Getty Images)

Adding a wrinkle to this scenario is the fact that the executive branch has actually been doing everything in its power to get the judiciary to step in and resolve the issue in favor of the anti-DOMA side. In February 2011, the Obama administration announced that the Department of Justice would no longer defend DOMA in legal challenges, including the five cases before the Supreme Court now, because it believed Section 3 to be unconstitutional. (The Bipartisan Legal Advisory Group from the House of Representatives now defends DOMA in court.) At the same time, the administration signaled its intention to keep enforcing the law (by continuing to reject federal benefits applications from same-sex married couples) until either Congress repealed the law or the Supreme Court decided its constitutionality. While this may seem counterintuitive, this bifurcated method of enforcing but not defending a federal law ensured that all five cases had a chance to keep moving through the federal appeals system and reach the Supreme Court. Granting the plaintiffs their benefits in the middle of a case would have removed their immediate cause for complaint and mooted their lawsuits before an appellate court could find the underlying law unconstitutional. Keeping the plaintiffs’ injury alive, however, kept the cases in play. Now that they have reached the certiorari stage, the DOJ has explicitly asked the Supreme Court to take at least one case and provide a definitive ruling on the constitutionality of Section 3.

The 2010 Census found that 42,000 same-sex couple households resided in states with same-sex marriage.  That figure doesn’t even include the thousands more in Maine, Maryland and Washington, the three states that legalized same-sex marriage this month. Thanks to the bottom-up, state-by-state legalization approach that marriage equality proponents have been using, nearly one-fifth of the states now allow gay and lesbian couples to marry. The more states that join, the higher the number of couples adversely affected by DOMA will be, and the more challenges we will see in the federal courts. Expect the Supreme Court to accept at least one DOMA petition, and expect the arguments to focus not only on equal protection but also on federalism and states’ rights. I’ll be back next time to talk about the Court’s track record on gay rights and the likely concerns of our resident swing vote, Justice Anthony Kennedy.

* In January 2004, the United States General Accounting Office counted 1,138 provisions in federal statutes in which “marital status is a factor in determining or receiving benefits, rights and privileges.”

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post here on legal issues.

And speaking of presidential elections…

…get ready for more of this in the upcoming months:

“Certain precincts in this county are not going to vote for Obama,” said John Corrigan, clerk of courts for Jefferson County, who was drinking coffee in a furniture shop downtown one morning last week with a small group of friends, retired judges and civil servants. “I don’t want to say it, but we all know why.”

A retired state employee, Jason Foreman, interjected, “I’ll say it: it’s because he’s black.”

This could get ugly. One of the more interesting aspects of this general election matchup between President Barack Obama and the presumptive Republican nominee, Mitt Romney, is the fact that they both suffer from two very similar trust deficit problems with large swaths of the American public.

Governor Mitt Romney of MA

First, both Romney and Obama are seen, by significant portions of the public, as un-American. For Romney, this is due to his Mormonism, which 22% of Americans last year cited as a disqualifying factor for the presidency. For Obama, this is due to his father’s Kenyan heritage and his own race, as well as lingering doubts as to his birthplace resulting from repeated lies being perpetrated by some right-wing groups.

Secondly, both candidates supported, and subsequently passed, universal healthcare coverage laws in their respective constituencies: the entire country for Obama, the state of Massachusetts for Romney. And although Romney has vowed to repeal “Obamacare” as soon as he is elected President (which may become a moot point next month if the Supreme Court rules the law unconstitutional), the fact that he passed a virtually identical bill while governor certainly doesn’t help his credibility.

And it is this tension — between the candidates’ political weaknesses and their desire to attack those same perceived weaknesses in their opponents — that should turn what might otherwise be a rather boring general election contest into riveting political theater. It will be interesting to see Obama subtly play up his Christianity and Romney do the same with his, well, whiteness. In terms of who has the edge, I’d give Romney a slight advantage here. Despite the fact that Obama projects an infinitely “cooler” public persona, a significant portion of the American public is still reticent (or racist) enough about his identity to such an extent that Romney can exploit this discomfort for electoral gain. Conversely, while Obama can try to very gently remind Americans of Romney’s Mormonism (to be clear, I find it ludicrous and disgusting that anyone wouldn’t vote for Romney based on his Mormonism, but that probably won’t stop Obama from trying), he likely won’t score as many points with this as Romney can with the “un-American” verbal grenades he’ll be tossing at Obama.

Cropped version of File:Official portrait of B...

On health care, however, I think the situation is flipped. Obama has the advantage here, as Romney has made Obamacare’s repeal a central cog of his presidential election campaign and yet passed basically the same thing in Massachusetts. His problem is one of credibility, especially given the massive attention being paid to the questions of whether he is sufficiently conservative and whether he has a real “core.” Obama, on the other hand, will likely be in a superior position, since it’s a law he passed as President and he is clearly interested in keeping it on the books. His weaknesses are twofold: 1) although individual elements of the law remain popular, the overall legislation is not; and 2) Obama has shown a surprising (and absolutely infuriating) tendency to back away from his own legislative achievements. If he wants to own Romney on the health care question, he needs to be unequivocal in his support for the health care bill he passed. Of course, Romney can then use this firmness to try to showcase how Obama’s out of step with the American public, but again, he’ll run straight into the credibility buzz-saw (since he passed the same thing at the state level).

This could end up being a very delicate tap-dance in the debates. Meanwhile, the TV ads will likely get really ugly, on both sides.

To be clear (quick note)

Although I did in fact just post a couple videos from the White House Correspondents’ Dinner the other night, let this in no way be construed as my endorsement of the fact of the event’s existence itself, because it emphatically isn’t. As much as I enjoy watching Obama goof around on stage (and, for what it’s worth, I think he has a terrific sense of comedic timing, including in relation to other recent U.S. presidents), the annual WHCD ritual is, in so many ways, an embodiment of all that is wrong with American media today.

I would elaborate, but then Gawker’s already gone ahead and done all the hard work for me.