Don Lemon Vs Larry Klayman

CNN host Don Lemon and crackpot freak show Larry Klayman got into it last night.

Klayman has previously received media attention for saying during a government shutdown rally that Obama needs “to put the Quran down, to get up off his knees, and to figuratively come out with his hands up,” leading to a particularly contentious fight with Martin Bashir. On CNN, Klayman was steamed that his appearance was preceded by what he saw as a hit piece on his character, and told Lemon, “It’s important to note that you’re a big supporter of Obama, that you have favored him in every respect.” He called Lemon an “ultra-leftist,” but Lemon interrupted and threatened to cut him out of the segment if he kept going. Toobin, who was never a fan of what Snowden did, argued that this was an important ruling on a serious subject that shouldn’t be tarnished by the “tin foil hat paranoia” of the “lunatic” on screen with him. Klayman responded by attacking Toobin’s past and calling him an unserious person who ‘should not be doing legal commentary for CNN.”

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Posted in: CNN,crackpots,crazy people,Don Lemon,Edward Snowden,Larry Klayman,NSA

2013 News In Review

From the Boston bombing to DOMA to Edward Snowden and much, much more. Excellent production by filmmaker Jean-Louis Nguyen.

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Posted in: 2013 in review,Boston Attacks,DOMA,Edward Snowden

Declassification of Foreign Intelligence Surveillance Court Opinions

By:  Timothy P. Flynn

Well, you had to see this one coming.  Something just does not seem right when a federal court adjudicates in secret, even if done under the provisions of the Patriot Act.

When Edward Snowden released a cashe of classified national security-related information earlier this summer, many in the legal blogosphere began to take note, and the Federal Intelligence Surveillance Court [FISC] was suddenly in the spotlight.

Much of the Snowden-generated furor involved government tracking and storage of email and cell phone transmissions; data, big and raw.  Here is our take on the issue in this post.

Thanks to the ACLU of Washtington, D.C., the FISC is again in the spotlight on a motion, brought pursuant to the Freedom of Information Act, to release certain opinions of the secret court which deal directly with the constitutionality of the court.  Opinions deciding the FISC's own constitutionality; now there is an interesting method of judicial review.

Here is the FISC Opinion, authored by Judge Dennis Saylor, ordering the federal government and the ACLU to submit a list of constitutional-threshold FISC opinions and a proposed declassification process by which the opinions can be submitted to the judge that authored the opinion for the author's judicial consideration as to whether they should be publicized.

Sound complicated?  Well, at least it is some progress toward openness.  The government list of opinions deemed suitable for publication and a proposed declassification procedure are due by October 4th.

The ACLU's filing sought publication of the FISC opinions directly from the stealth court itself, rather than as a component of separate litigation.  As noted in Judge Saylor's opinion, a similar request was lodged in 2011 by the ACLU in federal court in Manhattan which continues to be litigated.

When they are finally made public, these opinions will be very interesting.  We here at the Law Blogger cannot wait to see how the FISC passed muster on itself.

www.clarkstonlegal.com
info@clarkstonlegal.com

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Posted in: ACLU,Edward Snowden,FISA Court,FISC,Foreign Intelligence Surveillance Court,Judge Dennis Saylor,Patriot Act

The Foreign Intelligence Surveillance Court

By: Timothy P. Flynn

A secret court; something very offensive to our Democracy.  Even as lawyers, we here at the Law Blogger had never heard of such a stealth tribunal until Edward Snowden blew the whistle on one of its rulings [i.e. the FISA Court's "classified" order to turn over all of Verizon's phone tracing data to the NSA].

Actually, the FISA Court has been around since the 1978 passage of the Foreign Intelligence Surveillance Act.  Following the September 11th terrorist attacks on our country back in 2001, FISA has been repeatedly amended, primarily through the Patriot Act.

Not surprisingly, since 9/11, FISA has expanded steadily along with the powers of the FISA Court.  The Bush Administration based its warrantless wiretapping practice on FISA; the Obama Administration, to the surprise of many of its supporters, has not only continued the program, but expanded the scope of electronic surveillance to apparently everyone in America.

The Edward Snowden case has shined a light on the 11-member FISA Court.  What that light has shown is that the secret court has evolved from providing quick case-by-case rulings on electronic surveillance scenarios, to building a body of "classified" constitutional decisions that are now hefting the weight of judicial precedent; all without a scintilla of public scrutiny.

We here at the Law Blogger would like to know:  who is on this secret court?  What decisions are they making that may affect our right to privacy?  And do we even still have a right to privacy while connected to the internet or connected to a cell phone?

The FISA Court's recent classified decisions have become so constitutionally significant that a recent NYT article compares the secret court to a "parallel Supreme Court".

One example of the shrouded jurisprudence emanating from the FISA Court is the application of the "special needs" exception to the warrant requirement of the 4th Amendment in terrorism cases.  Normally, law enforcement cannot conduct a search or seizure of a person without a warrant based on probable cause.

In 1989, SCOTUS created the "special needs" exception to the 4th Amendment's warrant requirement in the context of public transportation.  SCOTUS ruled that public railway workers could be drug-tested by the government without a warrant on the basis that the minimal privacy intrusion of the worker was superseded by the need for public transportation safety.

Apply this logic to the modern terrorism cases, and any matter that evokes our "national security" opens the door for the FISA Court to invoke the "special needs" exception.  This fast-expanding exception is now poised to swallow the 4th Amendment's warrant requirement whole.

Although we do not get to read the secret court's decisions, from which there is a very limited and rarely used appeal process, we are told -via the NYT- that a sturdy pillar of jurisprudence and precedent has arisen from the FISA Court: the collection of Metadata does not offend the 4th Amendment.

Well, ok, if the Star Chamber says so.  But we here at the Law Blogger thought that ours was an adversarial justice system characterized by thesis, antithesis, and synthesis.

Post Script: October 15, 2013 - The FISA has given the green light in several of its recent cases for the NSA to continue to collect cell phone use data on U.S. Citizens.  We wonder if our emails are also subject to NSA scrutiny...

www.clarkstonlegal.com

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Posted in: 4th Amendment,Edward Snowden,FISA Court,Foreign Intelligence Surveillance Court,metadata,Patriot Act,privacy,SCOTUS,search and seizure

National Security vs Individual Privacy in the Big Data Era

By:  Timothy P. Flynn

This post is about the rights of a now famous arrest warrant fugitive, and about each of our rights to maintain private electronic data.

The Fourth Amendment to the United States Constitution guarantees rights to all private citizens:

...to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This important amendment arose, in part, as a response to abuses of power during the American Revolution associated with the reviled "writ of assistance"; a general search warrant that allowed the King's soldiers to toss your home with or without reason.

Fast forward to the 21st Century, which opened with unprecedented foreign terrorist attacks on our soil, and we see that our "papers and effects" have been digitized.  Most of us now have fairly robust electronic profiles as opposed to actual "papers and effects".

Now, 13-years into the e-Century, and a dozen years after the fateful 9/11 attacks on New York and Washington, the federal government wants, and apparently gets, direct access to the Big Data of our private lives.  This access has been granted in the name of national security and is backed by the Patriot Act, and other powerful national security-based federal laws.

The extradition and federal prosecution of  Edward Snowden will test these opposing concepts of liberty and national security in the digital age.  Like the cases of Julian Assange and Aaron Swartz, Snowden's revelations about the federal government's snooping is becoming a digital clarion call.

Snowden, a former NSA contractor, made some significant disclosures about what the NSA has been doing, to the Guardian newspaper in London earlier in the month.  The feds have been hunting him with an international arrest warrant ever since for violations of the Espionage Act.

Apparently, Mr. Snowden is now on the move, internationally, as in Jason Bourne style.  Only this is real, not fiction.  Once the United States has Mr. Snowden either extradited or rendered back to the US, he will face criminal charges in federal court in Virginia for leaking the NSA's digital secrets to the media.

Since its inception in 1917 up to the current administration, Presidents have only charged 3 individuals with violating the Espionage Act.  President Obama has prosecuted 6 individuals under the Act.

What does this tell us about the balance between our rights to have our data secure from the prying eyes of the government, and the governments duty to protect our shores from invasion?  Can both interests be served simultaneously?

www.clarkstonlegal.com
info@clarkstonlegal.com

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Posted in: Aaron Swartz,Big Data,Edward Snowden,Espionage Act of 1917,Fourth Amendment,Juian Assange,NSA,privacy rights