Thoughts – The Homogenization of The U.S. Political Class – Judicial Branch

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In my last research blog post that addressed the question of how the religion of state power has made government simpler, I came to the conclusion that progressives and their ideas are at the heart of the notion of big brother. While that post provided a well thought out, structured, and referenced argument, it doesn’t tell the complete story because it only addresses those people and ideas currently in power. It was only one side of the same coin.

Power in the U.S. governance system has a tendency to shift through presidential and mid-term elections. But the more things change the more they stay the same regardless of political/ideological affiliation. Prior abuses of power have a tendency to enable future abuses of power in ways yet imagined. This research post is the first of three posts that will address the U.S. political class as it relates to the religion of state power. The objective is to evaluate how endemic issues within the political class of people correlate to systemic issues within the U.S. governance system.

“If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

            – James Madison, Federalist Papers, No. 51

In a previous post I also addressed the nature of national security and double Government with respect to infringements on human and civil rights. The foundation of that research post relied on the work of Michael Glennon at The Fletcher School of Law and Diplomacy. While Mr. Glennon’s work was focused on the nature of national security and double government, within his work he provides an apt illustration of the nature of the U.S. Political class, also known as “Madisonians”. Since James Madison is considered the architect of the U.S. constitutional system comprising the executive, legislative, and judicial branches, the term “Madisonian” is apt in depicting those people citizens have elected to represent their interests. President Harry Truman signed into law the National Security Act of 1947 that created the network of National Security institutions known as the FBI, CIA, NSA, etc. The bureaucracies and bureaucrats are referred to as “Trumanite(s)” Let’s now look at some stark realities of the Madisonian institutions starting with the judicial branch.

The Reality of Madisonian Weakness

Although the Madisonian institutions seem to be in charge and, indeed, to be possessed of power broad enough to remedy their own deficiencies, a close look at each branch of government reveals why they are not.(1) A more accurate description would be that those institutions are in a state of entropy and have become, In Walter Bagehot’s words, “a disguise” – “the fountain of honor” but not the “spring of business.” (2) The Presidency, Congress, and the courts appear to set national policy, but in reality their role is minimal. (3) They exercise decisional authority more in form than in substance. (4) This is the principal reason that the system has not, as advertised, self-corrected and will not correct easily. (5) Lets now look at the Judiciary and how it practices the religion of state power in more stark detail.

How does the judicial branch practice the religion of state power?

The courts, which Hamilton called the “least dangerous” branch, pose the least danger to the silent transfer of power from the nation’s Madisonian institutions to the more efficient Trumanite bureaucracies. (6) Federal judicial appointees are selected, and vetted along the way, by those whose cases they will later hear: the Trumanites and their associates in the White House and Justice Department. (7) Before an individual is named to the federal bench, a careful investigation takes place to ensure that that individual is dependable. (8) What this means, in practice, is that appointees end up as trusted friends of the Trumanites in matters touching upon national security and other issues.(9) Presidents do not appoint individuals who are hostile to the Trumanites, nor does the Senate confirm them.(10) The deck is stacked from the start against challenges to Trumanite policies.(11)

Judicial nominees often come from the ranks of prosecutors, law enforcement, and national security officials, and they have often participated in the same sorts of activities the lawfulness of which they will later be asked to adjudicate.(12) A prominent example was former Chief Justice William Rehnquist.(13) Before his 1971 appointment to the Supreme Court by President Nixon, Justice Rehnquist served as Assistant Attorney General for the Office of Legal Counsel (“OLC”) under Attorney General John Mitchell.(14) In that capacity, Rehnquist participated directly in military surveillance of domestic political groups, including the preparation of a memorandum for Mitchell in 1969 dealing with the Army’s role in the collection of intelligence on civilians in the United States.(15) He also “played a critical role in drafting the 1969 presidential order that established the division of responsibility between the military and the Justice Department for gathering of intelligence during civil disturbances.(16) He testified before the Senate Judiciary Committee’s Subcommittee on Constitutional Rights in March 1971 that there were no serious constitutional problems with respect to collecting data or keeping under surveillance persons who are merely exercising their right of a peaceful assembly or petition to redress a grievance.(17) After his confirmation hearings to become Chief Justice, however, he wrote in August 1986 in response to written questions from Senator Mathias that he could not recall participating in the formulation of policy concerning the military surveillance of civilian activities.(18) The Senate confirmed his appointment by a vote of sixty-eight to twenty-six on December 10, 1971.(19) Shortly thereafter, the Court began considering Laird v. Tatum, a case involving the lawfulness of Army surveillance of civilians who were engaged in political activities critical of the government.(20) Justice Rehnquist declined to recuse himself, and the case was decided five to four.(21) The result was that the case was not sent back to the trial court to determine, as the Court of Appeals had ordered, the nature of the extent of military surveillance of civilian groups.(22) Instead, Justice Rehnquist’s vote most likely prevented the discovery of his own prior role and that of his Justice Department colleagues in developing the Nixon Administration’s military surveillance policy.(23)

Justice Rehnquist’s case is but one example of the symbiosis that binds the courts to the Trumanite network.(24) Justice Rehnquist was not the only member of the judiciary with Trumanite Links.(25) Other potential appointees had ample opportunity to prove their reliability.(26) Justice Antonin Scalia, before his appointment to the Supreme Court, also served as Assistant Attorney General for OLC and also was appointed initially by President Nixon.(27) During his tenure from 1974 to 1977 at OLC, Scalia later recalled, it fell to him to pass upon the legality of proposed covert operations by the intelligence community: “believe it or not, for a brief period of time, all covert had to be approved by me.”(28) He attended daily meetings in the White House Situation Room with Director of Central Intelligence William Colby and other top intelligence officials and decided what classified documents should be made available to Congress.(29) He was the legal point-person in dealing with congressional requests for information on intelligence matters; on behalf of the Ford Administration he asserted executive privilege before a House investigating committee when it recommended that Henry Kissinger be cited for contempt of Congress for failing to produce classified documents concerning U.S. covert operations abroad.(30)

Justice Samuel Alito is a former captain in the Army Signal Corps, which manages classified communication systems for the military.(31) He later became an Assistant U.S. Attorney, prosecuting drug and organized crime cases, and then an assistant to Attorney General Ed Meese before moving to OLC.(32) There he worked, as he put it, to “increase the power of the executive to shape the law.”(33) He was nominated to be a federal court of appeals judge in 1990 by President (and former Director of Central Intelligence) George H. W. Bush.(34) Once confirmed, Judge Alito established his reliability by voting against the daughters of civilians killed in a military place crash to uphold the government’s refusal to show a federal judge the official accident report, on grounds of the state secrets privilege.(35)

Chief Justice John Roberts was a law clerk for Justice Rehnquist.(36) In that capacity he reportedly contributed significantly to the preparation of Rehnquist’s opinion in Dames & Moore v. Regan, in which the court upheld the Executives power to extinguish pending lawsuits by Americans seeking compensation from Iran for property seized by the Iranian government.(37) He moved on to the Justice Department and then President Regan’s White House Office of General Counsel, where he drafted a letter for the President responding to retired Justice Arthur Goldberg, who had written Regan that the U.S. invasion of Grenada was of doubtful constitutionality.(38) Roberts wrote in the reply that the President had “inherent authority in international affairs to defend American lives and interests and, as Commander-in-Chief, to use the military when necessary in discharging these responsibilities.(39) Robert’s memos Charlie Savage at the New York Times has reported, “regularly took more extreme positions on presidential power than many colleagues.”(40) Appointed to the U.S. Court of Appeals for the District of Columbia in 2003, Roberts, like Alito, further confirmed his reliability.(41) He voted to uphold the system of military tribunals established by the Bush Administration (which the Supreme Court overturned in Hamdan v. Rumsfeld, a decision in which Roberts recused himself) and to uphold the power of the President, pursuant to statute, to prevent the courts from hearing certain lawsuits (in that case, brought by members of the U.S. military who had been captured and tortured during the Gulf War).(42)

It might be thought that these and other similarly inclined judges who adhere to views congenial to the Trumanite network have been appointed not because of Trumanite links but because of their judicial philosophy and particular interpretation of the Constitution – because they simply believe in a strong Executive Branch, a viewpoint that appointing Presidents have found attractive. (43) Justice Scalia seemingly falls into this category.(44) As Assistant Attorney General he testified twice before Congress in opposition to legislation that would have limited the President’s power to enter into sole executive agreements.(45) In judicial opinions and speeches before his appointment to the Supreme Court he frequently expressed opposition to judicial involvement in national security disputes.(46) “(J)udges know little” about such issues, as he wrote in one such case decided while he was a member of the U.S. Court of Appeals for the District of Columbia.(47) He argued again for deference in another national security case that came before that court that raised claims of “summary execution, murder, abduction, torture, rape, wounding, and the destruction of private property and public facilities.”(48) It was brought by plaintiffs that included twelve members of Congress, who argued violations of the Constitution, War Powers Resolution, and the Boland Amendments (which cut off funds for the activities at issue).(49) Judge Scalia refused to hear arguments on the merits; where a policy had been approved by “the President, the Secretary of State, the Secretary of Defense, and the Director of the CIA,” he wrote, discretionary relief is inappropriate.(50)

After his appointment to the Supreme Court, Justice Scalia supported the executive oriented approach to treaty interpretation that the Reagan Administration relied upon in arguing that the deployment of a space-based anti-ballistic missile (“ABM”) system would not violate the ABM treaty (referring in his opinion to various Washington Post articles on the controversy).(51) Later, in Rasul v. Bush, the Court’s majority held that federal district courts may exercise jurisdiction under the federal habeas statute to hear claims by foreign nationals detained by the United States.(52) Justice Scalia dissented, denouncing the majority for “judicial adventurism of the worst sort.”(53) In Hamdan v. Rumsfeld, the majority held that a military commission established by the Executive lacked power to try the defendant; Justice Scalia dissented again, insisting that the conclusion was “patently erroneous.”(54) In Boumediene v. Bush, the majority held that the defendant, a foreign national, had a constitutional privilege of habeas corpus; again Justice Scalia dissented.(55) It came as no surprise when Justice Scalia expressed concern in 2013 speech that the lawfulness of NSA surveillance could ultimately be decided by judges – “the branch of government that knows the least about the issues in question, the branch that knows the least about the extent of the threat against which the wiretapping is directed.”(56) When the Trumanites’ actions are at issue, submissiveness, not second-guessing, is the appropriate judicial posture.(57)

It is of course true that Justice Scalia and other such judges were and are appointed because of their judicial philosophy.(58) The cause of their beliefs, however, is as irrelevant as it is unknowable; whatever the cause, the effect is the same – they are reliable supporters of the Trumanites.(59) People tend to end up in organizations with missions compatible with their larger worldview, just as people once in an organization tend to adopt a worldview supportive of their organization’s mission. (60) Position and judicial philosophy both are indicia of reliability.(61) The question is not why a potential judicial appointee will come down the right way.(62) The question is whether the appointee might reasonably be expected to do so.(63)

It might also be argued that these justices were not sufficient in number ever to comprise a majority on the Supreme Court.(64) In an era of increasingly close decisions, however, one or two votes can be decisive, and it must be remembered that this cursory review embraces only the Supreme Court; numerous district and appellate court judges with ties to the Trumanite network also adjudicate national security cases.(64) This group includes, most prominently, the closest that the nation has to a national security court – the eleven members of the Foreign Intelligence Surveillance Court.(65)

The court, or FISC as it is commonly called, was established in 1978 to grant warrants for the electronic surveillance of suspected foreign intelligence agents operating in the United States. (66) Each judge is selected by Chief Justice of the Supreme Court from the pool of sitting federal judges.(67) They are appointed for a maximum term of seven years; no further confirmation proceedings take place, either in the Senate or the Executive Branch.(67) The Chief Justice also selects a Chief Judge from among the court’s eleven judges.(68) Chief Justice John Roberts selected all eleven of the sitting judges on the FISC; ten of the eleven were initially appointed to the federal bench by Republican presidents.(69) A study by the New York Times concluded that since Roberts began making appointments to the court, 50% have been former Executive Branch officials.(70)

Normally, of course, courts proceed in public, hear arguments from opposing counsel, and issue opinions that are available for public scrutiny.(71) Not so with the FISC.(72) All of its proceedings are closed to the public.(73) The adversarial system integral to American jurisprudence is absent.(74) Only government lawyers appear as counsel, unanswered by any real or potential adverse party.(75) The FISC has pioneered a two-tiered legal system, one comprised of public law, the other of secret law.(76) FISC opinions – even redacted portions of opinions that address only the FISC’s interpretation of the constitutional rights of privacy, due process, or protection against unreasonable search or seizure – are rarely available to the public.(77) Nancy Gertner, a former federal judge in Massachusetts, summed up the court: “The judges that are assigned to this court are judges that are not likely to rock the boat……All of the structural pressures that keep a judge independent are missing there.(78) It’s one-sided, secret, and one man chooses the judges in a selection process.(79) The Chief Judge of the FISC candidly described its fecklessness.(80) “The FISC is forced to rely upon the accuracy of the information that is provided to the Court,” said Chief Judge Reggie B. Walton.(81) “The FISC does not have the capacity to investigate issues of noncompliance, and in that respect the FISC is in the same position as any other court when it comes to enforcing [government] compliance with its orders.”(82) The NSA’s own record proved him correct; an internal NSA audit revealed that it had broken privacy rules or overstepped its legal authority thousands of times since 2008.(83)

The judiciary, in short, does not have the foremost predicate needed for Madisonian equilibrium; “a will of its own.”(84) Whatever the court, judges normally are able to find what appear to the unschooled to be sensible, settled grounds for tossing out challenges to the Trumanites’ projects.(85) Dismissal of those challenges is couched in arcane doctrine that harks back to early precedent, invoking implicitly the courts mystical pedigree and an aura of politics-transcending impartiality.(85) But challenges to the Trumanites’ projects regularly get dismissed before the plaintiff ever has a chance to argue the merits either before or, sometimes more importantly, the court of public opinion.(86)

Try challenging the Trumanites’ refusal to make public their budget on the theory that the Constitution does, after all, require “a regular statement and account of the receipts and expenditures of all public money”; or the membership of Members of Congress in the military reserve on the theory that the Constitution does, after all, prohibit Senators and Representatives from holding “any office under the United States”; or the collection of phone records of the sort given by Verizon to the NSA on the theory that the law authorizing the collection is unconstitutional.(87) Sorry, no standing, case dismissed. (87)

Try challenging the domestic surveillance of civilians by the U.S. Army on the theory that it chills the constitutionally protected right to free assembly, or the President’s claim that he can go to war without congressional approval on the theory that it is for Congress to declare war.(88) Sorry, not ripe for review, case dismissed.(89)

Try challenging the introduction of the armed forces into hostilities in violation of the War Powers Resolution.(90) Sorry, political question, non-justiciable, case dismissed.(91) Try challenging the Trumanites refusal to turn over relevant and material evidence about an Air Force plane accident that killed three crew members through negligence, or about racial discrimination against CIA employees, or about an “extraordinary rendition” involving unlawful detention and torture.(92) Sorry, state secrets privilege, case dismissed.(93)

Sometimes the courts have no plausible way of avoiding the merits of national security challenges.(94) Still, the Trumanites win.(95) The courts eighty years ago devised a doctrine – the “non-delegation doctrine” – that forbids the delegation of legislative power by Congress to administrative agencies.(96) Since that time it has rarely been enforced, and never has the Court struck down any delegation of national security authority to the Trumanite apparatus.(97) Rather, judges stretch to find “implied” congressional approval of Trumanite initiatives.(98) Congressional silence, as construed by the courts, constitutes acquiescence.(99)

Even if that hurdle can be overcome, the evidence necessary to succeed is difficult to get; as noted earlier, the most expert and informed witnesses all have signed non-disclosure agreements, which prohibit any discussion of “classifiable” information without pre-publication review by the Trumanites.(100) As early as 1988, over three million present and former federal employees had been required to sign such agreements as a condition of employment.(101) Millions more have since become bound to submit their writings for editing and redaction before going to press.(102) And as the ultimate trump card, the Trumanites are cloaked in, as the Supreme court put it, “the very delicate, plenary and exclusive power of the president as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress. (103) The basis of their power, the Court found, is, indeed, not even the Constitution itself; the basis of the Trumanite power is external sovereignty – the membership of the United Sates in the community of nations, which confers extra-constitutional authority upon those charged with exercising it.(104)

As is true with respect to the other Madisonian institutions, there are, or course, instances in which the judiciary has poached on the Trumanites domain.(105) The courts rebuffed an assertion of the commander-in-chief power in ordering President Truman to relinquish control of the steel mills following their seizure during the Korean War.(106) Over the Trumanites’ objections, the courts permitted publication of the Pentagon Papers that revealed duplicity, bad faith, and ineptitude in the conduct of the Vietnam War.(107) The Supreme Court did overturn military commissions set up to try enemy combatants for war crimes, and two years later found that Guantanamo detainees had unlawfully been denied habeas corpus rights. (108) Personnel does matter sometimes.(109) Enough apparent counterexamples exist to preserve the facade of Madisonian control and power.(110)

Yet the larger picture remains valid.(111) Through the long list of military conflicts initiated without congressional approval – Grenada, Panama, Kosovo, and, most recently, Libya – the courts have never stopped a war, with one minor (and temporary) exception.(112) In 1973, Justice William O. Douglas did issue an order to halt the bombing of Cambodia – which lasted a full nine hours, until the full Supreme Court over turned it.(113) The Court’s “lawless” reversal was effected though and extraordinary telephone poll of its members conducted by Justice Thurgood Marshall.(114) “[S]ome Nixon men,” Douglas believed, “put the pressure on Marshall to cut the corners.(115)

Seldom do judges call out even large-scale constitutional violations that could risk getting on the wrong side of an angry public, as American citizens of Japanese ethnicity discovered during World War II.(116) Whatever the cosmetic effect, the four cases representing the supreme court’s supposed “push-back” against the War on Terror during the Bush administration freed, at best, a tiny handful of detainees. (117) As of 2010 fewer than 4% of releases from Guantanamo followed a judicial release order.(118) A still-unknown number of individuals, numbering at least in the dozens, fared no better.(119) These individuals were detained indefinitely – without charges, based on secret evidence, sometimes without counsel – as “material witnesses” following 9/11.(120) One can barely find a case in which anyone claiming to have suffered even the gravest injury as the result of the Bush-Obama counter-terrorism policies has been permitted to litigate that claim on the merits – let alone to recover damages.(121) The Justice Department’s seizure of Associated Press (“AP”) records carried out pursuant to judicially approved subpoenas, in secret, without any chance for the AP to be heard.(122) The FISC has barely pretended to engage in real judicial review.(123) Between 1979 and 2011, the court received 32,093 requests for warrants.(124) It granted 32,087 of those requests, and it turned down eleven.(125) In 2012, the court received 1,789 requests for electronic surveillance, one of which was withdrawn.(126) All others were approved.(127) The occasional counterexample notwithstanding, the courts cannot seriously be considered a check on America’s bureaucratic Trumanite Network.(128)

Do you think meaningful change protecting your rights and representing your interests will come from the judicial branch? Lets now discuss how the legislative branch practices the religion of state power in my next post.

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