* This post originally appeared on The Huffington Postand is the third part of an ongoing series. The first part can be read here; the second part can be read here; the fourth part can be read here; the fifth part can be read here.
In my last post, I explored the pros and cons of the NSA's bulk telephony meta-data program. As I reported, after considering all the competing interests and perspectives, the Review Group concluded that, in light of the availability of other means by which the government could achieve its legitimate objectives, there was "no sufficient justification to allow the government itself to collect and store bulk telephony meta-data." The Review Group therefore recommended that the meta-data program, as currently constituted, "should be terminated as soon as reasonably practicable."
At the same time, though, the Review Group found that access to telephony meta-data can be useful to the government in its effort to identify terrorists operating inside the United States. The challenge was to figure out how best to preserve the legitimate value of the program while at the same time reducing its risks to personal privacy and individual freedom.
To strike a better balance, the Review Group recommends several important changes in the program as it currently exists.
First, and perhaps most important, the Review Group recommends that the government should not be permitted to store the telephony meta-data. The Review Group reasoned that taking the meta-data out of the hands of government would substantially reduce the potential for government abuse. The Review Group therefore recommends that the telephony meta-data should be held by private entities. That is, the meta-data should be held either by the various telephone service providers themselves or, upon a showing that that solution would make effective use of the meta-data impossible, by a private organization created specifically for that purpose. This approach would both prevent the government from having direct access to the database and ensure that an independent set of eyes could monitor the government's access to the information.
by Deborah A. Roy, Trial Attorney, Antitrust Division, United States Department of Justice and author of "Justice William J. Brennan, Jr., James Wilson, and the Pursuit of Equality and Liberty,"61 Clev. St. L. Rev. 665 (2013)
* The views expressed are not purported to reflect those of the United States Department of Justice.
Justice William J. Brennan, Jr., who served on the United States Supreme Court for 34 years from 1956 to 1990, was one of the most influential justices during his term on the Court. Today, however, it is unlikely that a president would announce his intent to appoint a justice in the mold of Brennan or that a nominee to the Court would invoke Brennan’s jurisprudence. Justice Brennan has been criticized for legislating from the bench and enacting his own liberal social views, rather than strictly interpreting the United States Constitution. To the contrary, however, Justice Brennan’s opinions were often directly opposed to his personal beliefs. For example, Justice Brennan acknowledged that, as a lifelong Roman Catholic, the rulings outlawing prayer in schools were difficult for him. And while he upheld the right of a demonstrator to burn the United States flag, it is unlikely that Brennan, a World War II veteran who cherished the country established by the Constitution, would himself burn its flag.
In fact, Justice Brennan interpreted the Constitution taking into account his understanding of the document’s founding principles. And his constitutional vision is consistent with that of James Wilson, a Framer from Pennsylvania, who is one of only six men to sign both the Declaration of Independence and the Constitution. Wilson is considered by many scholars to be second only to James Madison in his influence on the drafting of the Constitution. Justice Brennan and James Wilson shared a constitutional vision based on respect for the individual. Brennan frequently referenced human dignity as the foundational principle of his jurisprudence, while Wilson emphasized that the fundamental unit of democratic government is the individual person. From the principle of individual dignity, both men derived rights to equality and liberty. In a speech urging Pennsylvania to ratify the Constitution, Wilson stated that among the advantages of a constitutional democracy are the rights to liberty and equal laws for its citizens. Two centuries later, Brennan’s opinions furthered the realization of racial and gender equality, and upheld the liberty of individuals to make personal decisions without interference from the State.
All in all, 46 recommendations were offered, among them the private, non-governmental retention of all personal communications data, accessible only through individualized court orders approved by the Foreign Intelligence Surveillance Court (FISC); the first-ever appointment of a “public interest advocate” to argue on behalf of civil liberties and privacy concerns before the FISC, which currently has no adversarial process; the ceasing of “back door” access points in hardware or software; and the incorporation of privacy protections for non-U.S. citizens.
Also of note was the enumeration of guiding principles. For example, the panel endorsed a dual understanding of “security” – national security, on the one hand, and Fourth Amendment personal security on the other. The report also said the idea of “balancing” these two interests has “an important element of truth” but is “inadequate and misleading”:
[S]ome safeguards are not subject to balancing at all. In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, and gender.
The panel also endorsed a “broad principle for the future: as a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes.”
by Erin Kesler, Communications Specialist at the Center for Progressive Reform
Climate change and pollution affects everyone. Global warming-induced hurricanes pummel our coasts and droughts ravage our farmland. Our neighbors, friends, and children develop asthma and heart attacks because of air pollution and our favorite parks and hunting grounds are withering away.
The science is conclusive and polls reflect the concern of many Americans about global warming and its related pollution. So what can account for the lack of government action on the issue? The answer has a lot to do with our broken campaign finance system and the ability of individuals committed to denying the existence of climate change to dump huge amounts of money (much of it secret) into elections and in the political process.
During the 2012 election, outside spending groups, many of them newly created in the wake of the Supreme Court’s Citizens United decision, reported spending more than $1.28 billion to influence voters and politicians. Of the amount disclosed, just 132 individuals who contributed over $1 million each were responsible for the bulk of Super PAC spending. Significant amounts were dumped into the campaign coffers of members of Congress by regulated industries that have taken an active role in opposing any new efforts by the President to move forward on greenhouse gas regulations.
In addition, veins of secret money whistled their way through the campaign to the tune of over $300 million. Financial juggernauts of vague origin “donated” even more money to still more groups organized under the section of the tax code reserved for nonprofits and trade associations and continue to spend and influence policy debates and elections throughout the country, with a particular focus against environmental protection and anti-pollution measures.
As the end of 2013 quickly approaches, Senate leaders are working to move as many judicial nominations as possible before recess. However, some Senators continue to obstruct progress at every opportunity, slowing the pace of confirmations.
Brian Davis was confirmed to the Middle District of Florida on December 20, and is the only nominee to be confirmed since our last update. There has been speculation about a possible deal that will allow some nominees to be confirmed, or allow all nominees to be held over into the New Year, thereby avoiding the nominees being sent back to the White House. If sent back, they will need to be re-nominated by President Obama in January.
It seems most likely that nominees currently pending on the Senate floor, including Robert Wilkins for the D.C. Circuit, will not receive votes until the Senate returns in January.
Obstruction continues at the Judiciary Committee level, too. On Wednesday, December 18 five nominees were scheduled for a committee hearing. Minority members of the Committee invoked the two-hour rule, causing the hearing to be delayed until Thursday. Also on Thursday, December 19, the Committee was poised to vote on 15 nominees. Prior to the Committee meeting Senator Leahy (D-Vt.) issued a statement stressing the importance of reporting these nominees out of Committee before recess. Senator Grassley (R-Iowa), however, requested that the nominees be held over, as is often the case when nominees appear before the Committee for the first time for a vote. Senator Leahy acquiesced, but noted that all of these nominees had been scheduled for votes more than once before, but the Committee had not had quorum to vote.