Boy, oh boy, what an amazing few days in the Supreme Court. Yesterday, I was completely and utterly devastated by Supreme Court's decision to gut the Voting Rights Act, and yet today, I am overjoyed by the Court's decisions to overturn the Defense of Marriage Act and punt on Prop. 8. So, from my legal perspective, I have a few things to say about the Prop. 8 case and the Voting Rights Act case.
1) How bad was the decision overturning the VRA?
Really, really bad. Whether you like the policy of the decision or not, the VRA decision is awful, legally speaking. Congress passed the Voting Rights Act in 1965, and re-upped the VRA twice, the last time in 2008. In 2008, only 33 legislators (out of a total of 535) voted against the Voting Rights Act. Moreover, the Supreme Court previously held the VRA was constitutional. Further, the VRA was passed by Congress based upon the powers granted to it by the 15th Amendment which specifically authorizes Congress to pass legislation to protect the right to vote.
The Supreme Court, in its decision, determined that the formula Congress used to require States to get pre-approval of voting rights changes from the Justice Department violated the Constitution (specifically the 10th Amendment) because it used disparate treatment of various states. Further, the Court determined that since the VRA prevented racial discrimination in voting, it doesn't need to exist anymore.
There are some very, very big problems with this. First, when reading statutes, courts are supposed to read the newer statute as overruling the older one when they conflict. The 10th Amendment was passed in the 1780's, the 15th Amendment was passed in the 1860's. By rights, the 15th Amendment should always trump the 10th. Also, the 15th Amendment was put in place specifically to protect African Americans living in Southern States. The same states that the VRA required to get preapproval, and which are now attempting to curtail voting rights of minorities.
Worst of all, the Supreme Court's decision is based upon its view that racial discrimination is a thing of the past less than one year from the 2012 elections, which had some of the most blatant attempts to prevent minority voting. The majority decided that its policy decision trumped the policy decision of both Congress and the President (who was George W. Bush, by the way). That's not what the Supreme Court is supposed to do. Oh, and the disparate treatment analysis under the 10th Amendment, which the majority relied upon, has never been argued before. Until this decision, such an analysis did not exist.
2) Is the DOMA Opinion As Bad, Legally Speaking, As the VRA Opinion?
No, but its a good question that I came up with. Lacking all sense of irony, Justice Scalia wrote a scathing dissent on to the opinion overturning DOMA (Defense of Marriage Act). The majority held that under the 5th Amendment, Congress can't pass a law that denies equal treatment under the law. Now, the 5th Amendment doesn't exactly require equal treatment by the Feds (unlike the 14th Amendment which requires the States to guarantee equal treatment), but there have been a fair number of decisions arguing the 5th does grant those rights. As doctrines go, while its not enshrined in the Constitution, exactly, its fairly innocuous because we all pretty much want the Feds to treat people equally.
Additionally, and unlike the VRA case, there isn't a constitutional amendment that specifically allows Congress to define marriage. Heck, before DOMA was passed by Congress in 1996, Federal law didn't define what does and does not constitute a marriage. It left the whole thing to the states. So defining marriage almost certainly violated the 10th Amendment (a lot more than the VRA), in addition to discriminating against same-sex couples without any rational basis. Pretty much the only thing holding up DOMA was animus towards same-sex relationships.
3) What Happened, Exactly, With Prop. 8?
The Supreme Court kicked the case because it held that the supporters of Prop. 8 did not have standing. Now, standing is a hard concept for a lot of people, attorneys included to understand fully. Once you understand standing, you are treated like some kind of guru. Anyway, standing is a concept that typically applies only in Federal Court (with some exceptions, such as California's Unfair Competition Law), and it relates to Article III of the Constitution. Basically, it means that unless you are losing money, property, or freedom, from the bad stuff you are alleging, you can't sue.
Here, the procedural history will help shed a light on what standing means. California passed Prop. 8, and the Plaintiffs sued California in Federal Court because their right to marry was taken away. The State of California "defended" the lawsuit by essentially handing over the case to Prop. 8's supporters. The Plaintiffs had standing because they were losing the right to marry, and the Defendant (California), had standing because the Federal government could force California to recognize same-sex marriages. The Supporters of Prop. 8 then got their asses handed to them at trial. Seriously, google Judge Walker's memorandum of decision, it represents an epic ass-kicking.
Anyway, California decided it had done its duty, and decided not to appeal the District Court's verdict (again EPIC. ASS. KICKING.). So the Supporters of Prop. 8 decided to appeal the decision to the 9th Circuit Court of Appeals. So the question kicked in, do the supporters of Prop. 8 have standing to bring the appeal? Under California law, they totally do, and the 9th Circuit decided to let the appeal go forward, and promptly ruled against the supporters of Prop. 8.
The Supreme Court, meanwhile, looked at California's standing requirements and looked at the standing requirements under Article III, and by a 5-4 decision, determined that Supporters don't have a right to appeal the decision because they are not affected one way or another by same-sex marriage. Yes, they may not like the decision, but no one is being forced into gay marriage.
4) So. . .Is That a Good Thing?
Mostly. For one, the District Court's opinion (which was much stronger than the 9th Circuit's), stands, and Prop. 8 deemed unconstitutional. There is a concern that this ruling could cause problems down the road because the California government may not defend initiatives it doesn't like in Federal Court. Of course, that's why in California, there are specific standing provisions that allow proposition supporters to stand in the place of the State of California in Court.
5) But How Far Does the Prop. 8 Decision Reach?
It only applies to California, and technically, it only applies to the Plaintiffs who actually brought the lawsuit. This lawsuit wasn't brought as a class action, or a representative action, so really, the judgment only applies to the people who brought the lawsuit.
6) So Same-Sex Couples Can't Get Married in California?
Well, that brings up an interesting point. You see, Judge Walker determined that California has no rational basis in limiting marriage to opposite sex couples. While that ruling is technically only related to actual Plaintiffs, the fact that California lost the case has a huge effect. There are legal doctrines called "res judicata" and "collateral estoppel" that apply here. What these doctrines say is that you don't get to relitigate a loss in a lawsuit. You can appeal a decision, and even petition for a Supreme Court to review the decision, but once those appeals are done, you are done.
Since California unquestionably lost the Prop. 8 case for these Plaintiffs, it will now lose every Prop. 8 case brought almost automatically (the Plaintiff would have to write a motion), because it is prevented from arguing that it Prop. 8 is constitutional. So, technically, if the State of California wanted to be jerk about it, it could try to prevent same-sex couples from getting married, only to get sued and lose time and time again. Since that no one likes to get their ass kicked, and attorneys are expensive, Gov. Brown and the rest of the State government has said, "fuck it" and will allow same-sex couples to get married.
So, while technically the Prop. 8 decision applies only to a couple of people, for all practical purposes it covers everyone in the State.
Wednesday, June 26, 2013
Monday, June 24, 2013
The Edward Snowden Question
If you haven't kept up with the last few posts, or with the news, there's a guy by the name of Edward Snowden who worked for an NSA contractor, and used that position to gather information about how the NSA spies on basically everyone. He gave the information to Glenn Greenwald, and then fled to Hong Kong. On Friday, the United States filed espionage charges against Snowden and he has since fled Hong Kong and is flying to parts unknown via Russa.
The typical players of the MSM, naturally, are calling for the prosecution of Snowden and Greenwald for espionage. Granted, these are the same people who supported the Iraq War and who have turned a blind eye to the war crimes of the past Administration (and yes, torture is a war crime). These are the same journalists who base their entire lives on getting access from the powers that be. Hopefully, they all go the way of Howard Kurtz and work for Fox some day.
That said, should Snowden be prosecuted for giving up state secrets? Well, that's a somewhat complex issue. Snowden's leaked two types of information to the world - how the U.S. spies on its citizenry, and how it spies on the rest of the world. The first bit of information, how the U.S. spies on its citizenry, is information of phenomenal importance. We, as Americans, have to be able to debate whether our government should spy on us. But we can't do so if we don't know whether the government is spying on us, and how the government is spying on us. This information may be embarrassing, but we need to know about it, even if, as in this case, the spying is authorized by law, and reviewed by a court.
The second type of information, how the U.S. spies on the rest of the world, is a different story altogether. Of course the United States should engage in espionage on the international stage. Simply put, we need intelligence to inform our policy-makers when they make momentous decisions. Had the Bush Administration listened to the CIA, for instance, it would known that Hussein had no biological/chemical/nuclear weapons (of course, it didn't care, but that's beside the point). When policy-makers make decisions on foreign policy blind, PEOPLE DIE.
So ultimately, I think if Snowden had stopped with giving up information on how the U.S. spies on the citizenry, he might have had a case for why he should not be prosecuted. He would have performed the public service he claims he performed. But instead, he blabbed about spying on foreign governments, which is unforgivable.
Lastly, I think the contractor shouldn't be let off the hook. Snowden claims he took the job specifically to spy on the NSA. That, my friends, is one hell of security breach and falls within the classic definition of a spy. Booz Allen Hamilton (Snowden's employer) has some explaining to do.
The typical players of the MSM, naturally, are calling for the prosecution of Snowden and Greenwald for espionage. Granted, these are the same people who supported the Iraq War and who have turned a blind eye to the war crimes of the past Administration (and yes, torture is a war crime). These are the same journalists who base their entire lives on getting access from the powers that be. Hopefully, they all go the way of Howard Kurtz and work for Fox some day.
That said, should Snowden be prosecuted for giving up state secrets? Well, that's a somewhat complex issue. Snowden's leaked two types of information to the world - how the U.S. spies on its citizenry, and how it spies on the rest of the world. The first bit of information, how the U.S. spies on its citizenry, is information of phenomenal importance. We, as Americans, have to be able to debate whether our government should spy on us. But we can't do so if we don't know whether the government is spying on us, and how the government is spying on us. This information may be embarrassing, but we need to know about it, even if, as in this case, the spying is authorized by law, and reviewed by a court.
The second type of information, how the U.S. spies on the rest of the world, is a different story altogether. Of course the United States should engage in espionage on the international stage. Simply put, we need intelligence to inform our policy-makers when they make momentous decisions. Had the Bush Administration listened to the CIA, for instance, it would known that Hussein had no biological/chemical/nuclear weapons (of course, it didn't care, but that's beside the point). When policy-makers make decisions on foreign policy blind, PEOPLE DIE.
So ultimately, I think if Snowden had stopped with giving up information on how the U.S. spies on the citizenry, he might have had a case for why he should not be prosecuted. He would have performed the public service he claims he performed. But instead, he blabbed about spying on foreign governments, which is unforgivable.
Lastly, I think the contractor shouldn't be let off the hook. Snowden claims he took the job specifically to spy on the NSA. That, my friends, is one hell of security breach and falls within the classic definition of a spy. Booz Allen Hamilton (Snowden's employer) has some explaining to do.
Tuesday, June 11, 2013
More Thoughts on the NSA Snooping Leak
As I noted in yesterday's post, the whole NSA "scandal" came about because Edward Snowden, a high school dropout with Top Secret clearance, leaked thousands of pages of information to Glenn Greenwald, which was easy because he was an IT guy. Oh, by the way, he had next to zero training in computers, and made over $120,000 per year.*
But aside from the fact that he leaked these documents, and from the fact that he apparently thinks Hong Kong will keep him safe from the U.S.**, Edward Snowden's identity should be a mere footnote in a much larger issue. Namely, that the National Security Agency has been spying on Americans, and the head of the NSA apparently lied to Congress about it. In fact, to the extent that there is a scandal, its that it took the completely batshit insane act of probable treason by Edward Snowden for any of us to know it was going on.
And ultimately, I don't mind the NSA doing any of this, if, and only if, the following safeguards are put into place - either by executive order, or, and much better, by actual statutory law:
1) Any internet spying is done to either (a) prevent acts of violence against Americans because they are Americans to induce terror, or, (b) to catch those who have perpetrated acts of violence against Americans because they are Americans in an effort to terrorize the populace.
2) Any information gathered that does not have to do with terrorism will be destroyed and cannot be used for any purpose by the government of the United States, or any state government in any criminal or civil proceeding, except for the purpose of trying terrorists in criminal court, or allowing the victims of terrorist attacks to sue terrorists or their organizations.
3) Have a Court that oversees the NSA actually provide some oversight. Currently, the FISA court, which oversees the NSA, has allowed the government to do whatever it wants 99.67% of the time. Of the over 33,000 requests for a warrant, the FISA court turned down the government 11 times. ELEVEN! There has to be better oversight.
Now this is a short set of limitations, and I'm still pondering what else to add, but I think this would be a great place to start. One thing that worries me is that its pretty easy to add more topics to the list of things we use the information for. For instance, I'd be hard-pressed not to include child porn or human trafficking to 1). But I do think that we can find some middle ground in this.
*My favorite part of this post will be that my fiance' will read the point about Edward Snowden twice her salary (she's a teacher), and blowing up. Also, unless you are an IT guy, an engineer or a scientist, you definitely studied the wrong subjects in school. Just sayin'.
**Actually, I think the Hong Kong thing is a ruse to throw the investigators off his track. Snowden has been a spook since 2007, at least, and rose up from security guard to IT guy/spook really fast. I don't think he's dumb enough to think that China won't give him up. If I had to bet, I'd say he's either in Ecuador or in route to Ecuador right now, probably on a container ship. Then again, I may have watched too many spy movies.
But aside from the fact that he leaked these documents, and from the fact that he apparently thinks Hong Kong will keep him safe from the U.S.**, Edward Snowden's identity should be a mere footnote in a much larger issue. Namely, that the National Security Agency has been spying on Americans, and the head of the NSA apparently lied to Congress about it. In fact, to the extent that there is a scandal, its that it took the completely batshit insane act of probable treason by Edward Snowden for any of us to know it was going on.
And ultimately, I don't mind the NSA doing any of this, if, and only if, the following safeguards are put into place - either by executive order, or, and much better, by actual statutory law:
1) Any internet spying is done to either (a) prevent acts of violence against Americans because they are Americans to induce terror, or, (b) to catch those who have perpetrated acts of violence against Americans because they are Americans in an effort to terrorize the populace.
2) Any information gathered that does not have to do with terrorism will be destroyed and cannot be used for any purpose by the government of the United States, or any state government in any criminal or civil proceeding, except for the purpose of trying terrorists in criminal court, or allowing the victims of terrorist attacks to sue terrorists or their organizations.
3) Have a Court that oversees the NSA actually provide some oversight. Currently, the FISA court, which oversees the NSA, has allowed the government to do whatever it wants 99.67% of the time. Of the over 33,000 requests for a warrant, the FISA court turned down the government 11 times. ELEVEN! There has to be better oversight.
Now this is a short set of limitations, and I'm still pondering what else to add, but I think this would be a great place to start. One thing that worries me is that its pretty easy to add more topics to the list of things we use the information for. For instance, I'd be hard-pressed not to include child porn or human trafficking to 1). But I do think that we can find some middle ground in this.
*My favorite part of this post will be that my fiance' will read the point about Edward Snowden twice her salary (she's a teacher), and blowing up. Also, unless you are an IT guy, an engineer or a scientist, you definitely studied the wrong subjects in school. Just sayin'.
**Actually, I think the Hong Kong thing is a ruse to throw the investigators off his track. Snowden has been a spook since 2007, at least, and rose up from security guard to IT guy/spook really fast. I don't think he's dumb enough to think that China won't give him up. If I had to bet, I'd say he's either in Ecuador or in route to Ecuador right now, probably on a container ship. Then again, I may have watched too many spy movies.
Monday, June 10, 2013
Deep Thoughts on the NSA. . .
Via Twitter and a few trusted blogs, I've been following the NSA "scandals" of recent days, and I've been troubled to say the least. There are a number of practical and not-so-practical issues the result from the recent disclosures to the world via Edward Snowden.
First, it should be noted that the recent revelations about what the National Security Agency has done can't really be described as a scandal. The NSA performed searches of phone metadata (who you called, where you were when you called, and how long the phone call lasted), and internet data on a massive scale because current law lets the NSA do so. Both the Federal judiciary and Congress have been briefed on these activities, and the judiciary specifically authorized the NSA to take part in these activities (as far as I can tell). In other words, what we have here isn't so much a scandal as it is a policy choice that was enacted into law, and has been overseen by all branches of the government.
But with all that said, the question remains whether the NSA should be able to snoop on individuals at this level. Unfortunately, because the NSA's activities are necessarily secret, we as Americans can't debate them the way we would with any other policy decision. So, in that context, what Snowden did was important. We are now asking important questions about these programs.
So, where do I stand? I tend to have a different view of the Constitution than most - I don't think there is a right to privacy in the Constitution. The Constitution's framing is all about who has what power, rather than who gets to find out who's doing what. To that end, I think the Constitution grants individuals the right of self-sovereignty - the right to speak their minds, practice their own religion, write blogs and newspapers, be secure in their bodies, homes and belongings, and be free from interference unless the government has a good cause. And in that context, what the NSA's collection of metadata from cell phones is important, but ultimately not interfering with people's lives.
Where I do have a problem is with the collection of interpersonal communications on what appears to be a massive level. Not because a lot of that information is secret - after all, the whole point of this blog, my Facebook account, and my Twitter feed is to broadcast my life - but rather, because, as an attorney, I have a duty to keep my communications with clients secret. If the NSA is reading my emails, then how can I claim these emails are privileged communications? Unfortunately, its a grey area, and I'm concerned.
Of equal importance is how the data is used. What if the NSA, looking for terrorists, discovers a medical marijuana ring, or (much, much, more likely) a NCAA Tourney pool? In either instance, the NSA would receive evidence of a federal crimes. Or, what if the NSA was able to determine who belongs to the Republican Party or the Democratic Party? Could an Administration use this information to maintain power? Um, probably.
So there needs to be a discussion and some clear ground rules as far as what the data can and can't be used for. Ideally, it's used only when someone is planning to attack U.S. civilians, and otherwise destroyed. Certainly, this kind of information is important, and might've prevented 9-11, but as I said, I'm concerned, but I'm also glad we are having the discussion.
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