ACSBlog

by Jeremy Leaming

Some legal scholars and defenders of the indefinite war on terror are coming, mostly with strained arguments, to the defense of the Obama administration’s abuse of freedom of speech. The First Amendment’s speech clause includes protection for a free press, a fairly fundamental way people communicate.

But the Obama administration, which has carried on some of the Bush administration’s counterterrorism tactics, and escalated others, such as the drone war, is obsessed with going after public officials and others suspected of leaking important details of counterterrorism activities and other national security concerns.

The Department of Justice has trolled the phone records of Associated Press reporters in a leak investigation of the AP’s coverage of a foiled terrorist plot in Yemen, and spied on the work of Fox News correspondent James Rosen, in another leak case involving a 2009 story about North Korea’s announcement of launching a nuclear missile. The Washington Post reported that the DOJ “used a security badge to access records to track the reporter’s comings and goings from the State Department… and “traced the timing of his calls with a State Department security adviser suspected of sharing the classified report.” The DOJ, The Post continues, obtained a search warrant for Rosen’s personal e-mails. The DOJ didn’t stop there. It’s arguing that Rosen may have been a co-conspirator in the leak. So now you have the federal government using the Espionage Act to go after alleged leakers, and a journalist, whose job partly entails keeping the public informed about its government.

Gabe Rottman for the ACLU’s Blog of Rights says “never before has the government argued that newsgathering – in this case, asking a source to provide sensitive information – is itself illegal. That would, quite literally, make virtually any question by a reporter implicating classified information a potential felony.”

Last week, when taking questions about his administration’s leak investigation involving secretly culling AP phone records, Obama said no apologies were necessary and provided a tired defense of his administration’s obsession with investigating and prosecuting leaks. Essentially Obama said trust the executive branch and leakers are bad.

But as noted here before war, as George Orwell once wrote has the effect of not meshing terribly well with individual liberties. In Homage to Catalonia about the Spanish Civil War, Orwell wrote, “The fact is that every war suffers a kind of progressive degradation with every month that it continues, because such things as individual liberty and a truthful press are simply not compatible with military efficiency.”

by Jeremy Leaming

Sen. Chuck Grassley (R-Iowa) a champion of obstructing President Obama’s nominations to the federal bench and some to executive branch positions, has focused special attention on the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit is a significant court that hears high-profile national security concerns and cases regarding federal regulation, among other lofty matters. Patricia Wald, retired, served on the august Circuit court for 20 years, including five as its chief judge. She noted in a piece for The Washington Post, “Aside from the U.S. Supreme Court, it resolves more constitutional questions involving separation of powers and executive prerogatives than any court in the country.”

The eleven-member court has four vacancies and President Obama has yet to fill one of them, because of Senate obstructionism. Senate Republicans twice scuttled Obama’s nomination of Caitlin Halligan to fill one of the Court’s vacancies. Some pundits say too much focus is placed on increasing obstructionism and grope for other excuses for the federal bench’s high vacancy rate. (See JudicialNominations.org for more on the vacancies.) But those pundits are simply uniformed or disingenuous. Republicans, led by the ringleader of obstruction, Sen. Mitch McConnell (R-K.Y.) have stalled nominees to the Circuit courts and even some to the federal district courts. At The Dish, Andrew Sullivan has blasted the GOP for its rampant obstructionism, in reporting on a Party that has become increasingly hostile to governing.

The D.C. Circuit with its four Republican appointees and three Democratic appointees has eagerly invalidated regulations to protect the environment, which is good for corporations, bad for humans, and earlier this year issued an opinion re-writing the president’s recess appointment power. Several of the D.C. Circuit's judges are also on senior status, which means they have much more flexibility in what cases they participate, and a greater chance exists that a three-judge panel will more often be made up of three Republican appointees. It’s a Court that caters to corporate interests, which is likely one, if not the compelling reason, Grassley and other Republicans are striving to keep Obama from placing judges on the Court.

Grassley a part of the apparatus that blocked Halligan has not, so far, stood in the way of another nominee to the D.C. Circuit, Sri Srinivasan. But Grassley is pushing legislation that would cut the number of judges on the bench, signaling an effort to make sure the president has no more chances to shape the make-up of the D.C. Circuit. Grassley would move judgeships to the U.S. Court of Appeals for the Second Circuit and the U.S. Court of Appeals for the Eleventh Circuit.

Part of Grassley’s push entails the canard that the D.C. Circuit has a light caseload. The Constitutional Accountability Center’s Judith E. Schaeffer in post for the group’s Text & History blog blasted Grassley’s effort as a “partisan sham.” She continued, adding that the Grassley effort amounted to “a ‘mass filibuster’ of President Obama’s future nominees to this critical circuit court. Senator Grassley’s bill is nothing more than a ploy to give cover to Senate Republicans who have no intention of letting a Democratic president fill those three vacancies on the D.C. Circuit.”

The right-wing editorial board of The Wall Street Journal has also joined Grassley’s cause. In a May 20 editorial, it apes Grassley’s talking points, saying the D.C. Circuit “doesn’t need the judges. The D.C. Circuit is among the most underworked court in the federal system.”