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Dennis Leahy
23rd May 2012, 14:21
A "preliminary injunction" was brought down against the NDAA in US federal court. (US District Court Southern District of New York) Judge Katherine Forrest's 68-page ruling can be read in its entirety here: http://www.truthdig.com/images/eartothegrounduploads/Decision.pdf

Note the prominent names who brought the lawsuit, (and I believe it was predominantly the brilliant Chris Hedges that spearheaded the effort), but note that "the mouse that roared (http://www.youtube.com/watch?v=goAdDMfpyrA)" - Birgitta Jónsdóttir (http://www.resetbutton2012.org/MsgIce.php) - is once again involved, reaching out beyond the boundaries of her native Iceland (that she just helped to free from the claws of international bankers.) Every time you feel too small to affect change, remember Birgitta and strengthen your resolve.

From a TruthDig article, posted May 16, 2012
A federal judge Wednesday issued an injunction against a National Defense Authorization Act provision that grants the military the right to detain anyone it suspects of involvement in terrorism. U.S. District Judge Katherine Forrest ruled in favor of a group of plaintiffs, including Truthdig columnist Chris Hedges, who filed (http://www.truthdig.com/report/item/why_im_suing_barack_obama_20120116/) a lawsuit against the legislation within weeks of President Obama signing it. Hedges was joined in the suit by linguist, author and dissident Noam Chomsky, Pentagon whistle-blower Daniel Ellsberg and other high-profile activists, scholars and politicians.
Hedges argued in his testimony that his work as a journalist would bring him into contact with terrorist organizations that would, given the scope of the law, qualify him for indefinite detention. The plaintiffs argued that the threat of detention alone would be an unconstitutional encroachment on their First Amendment rights to free expression and association, as well as a violation of the Fifth Amendment right to due process.

http://www.youtube.com/watch?v=nERShH1VhP0
Source: http://www.youtube.com/watch?v=nERShH1VhP0

Dennis

conk
23rd May 2012, 18:24
Did we really need a federal judge to understand this? Could not a 5th grader understand this concept? Well, maybe a 5th grader from 30 years ago, not one of the poor wretched misfits they dumb down today.

mountain_jim
23rd May 2012, 18:50
Additional prior threads on this topic:

http://projectavalon.net/forum4/showthread.php?45289-Judge-prohibits-enforcement-of-indefinite-detention-part-of-NDAA

http://projectavalon.net/forum4/showthread.php?45267-Federal-Judge-Terror-Law-Violates-First-Amendment

(the above contained my contribution requoted below, such as it was...)

Commentary from my favorite constitutional law writer

http://www.salon.com/writer/glenn_greenwald/

http://www.salon.com/2012/05/16/federal_court_enjoins_ndaa/singleton/





Wednesday, May 16, 2012 05:14 PM EDT
Federal court enjoins NDAA

An Obama-appointed judge rules its indefinite detention provisions likely violate the 1st and 5th Amendments
By Glenn Greenwald

(updated below)

A federal district judge today, the newly-appointed Katherine Forrest of the Southern District of New York, issued an amazing ruling: one which preliminarily enjoins enforcement of the highly controversial indefinite provisions of the National Defense Authorization Act, enacted by Congress and signed into law by President Obama last December. This afternoon’s ruling came as part of a lawsuit brought by seven dissident plaintiffs — including Chris Hedges, Dan Ellsberg, Noam Chomsky, and Birgitta Jonsdottir — alleging that the NDAA violates ”both their free speech and associational rights guaranteed by the First Amendment as well as due process rights guaranteed by the Fifth Amendment of the United States Constitution.”

The ruling was a sweeping victory for the plaintiffs, as it rejected each of the Obama DOJ’s three arguments: (1) because none of the plaintiffs has yet been indefinitely detained, they lack “standing” to challenge the statute; (2) even if they have standing, the lack of imminent enforcement against them renders injunctive relief unnecessary; and (3) the NDAA creates no new detention powers beyond what the 2001 AUMF already provides.

As for the DOJ’s first argument — lack of standing — the court found that the plaintiffs are already suffering substantial injury from the reasonable fear that they could be indefinitely detained under section 1021 of the NDAA as a result of their constitutionally protected activities. As the court explained (h/t Charles Michael):


In support of their motion, Plaintiffs assert that § 1021 already has impacted their associational and expressive activities–and would continue to impact them, and that § 1021 is vague to such an extent that it provokes fear that certain of their associational and expressive activities could subject them to indefinite or prolonged military detention.

The court found that the plaintiffs have “shown an actual fear that their expressive and associational activities” could subject them to indefinite detention under the law,and “each of them has put forward uncontroverted evidence of concrete — non-hypothetical — ways in which the presence of the legislation has already impacted those expressive and associational activities” (as but one example, Hedges presented evidence that his “prior journalistic activities relating to certain organizations such as al-Qaeda and the Taliban” proves “he has a realistic fear that those activities will subject him to detention under § 1021″). Thus, concluded the court, these plaintiffs have the right to challenge the constitutionality of the statute notwithstanding the fact that they have not yet been detained under it; that’s because its broad, menacing detention powers are already harming them and the exercise of their constitutional rights.

Significantly, the court here repeatedly told the DOJ that it could preclude standing for the plaintiffs if they were willing to state clearly that none of the journalistic and free speech conduct that the plaintiffs engage in could subject them to indefinite detention. But the Government refused to make any such representation. Thus, concluded the court, “plaintiffs have stated a more than plausible claim that the statute inappropriately encroaches on their rights under the First Amendment.”

Independently, the court found that plaintiffs are likely to succeed on their claim that the NDAA violates their Fifth Amendment due process rights because the statute is so vague that it is virtually impossible to know what conduct could subject one to indefinite detention. Specifically, the court focused on the NDAA’s authorization to indefinitely detain not only Al Qaeda members, but also members of so-called “associated forces” and/or anyone who “substantially supports” such forces, and noted:


Plaintiffs have shown a likelihood of success on their vagueness challenge. The terms upon which they focused at the hearing relate to who is a “covered person.” In that regard, plaintiffs took issue with the lack of definition and clarity regarding who constitutes an “associated forces,” and what it means to “substantially” or “directly” “support” such forces or, al-Qaeda or the Taliban. . . .

The Government was unable to define precisely what ”direct” or “substantial” “support” means. . . .Thus, an individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so.

Perhaps most importantly, the court categorically rejected the central defense of this odious bill from the Obama administration and its defenders: namely, that it did nothing more than the 2001 AUMF already did and thus did not really expand the Government’s power of indefinite detention. The court cited three reasons why the NDAA clearly expands the Government’s detention power over the 2001 AUMF (all of which I previously cited when denouncing this bill).

First, “by its terms, the AUMF is tied directly and only to those involved in the events of 9/11,” whereas the NDAA “has a non-specific definition of ‘covered person’ that reaches beyond those involved in the 9/11 attacks by its very terms.” Second, “the individuals or groups at issue in the AUMF are also more specific than those at issue in § 1021″ of the NDAA; that’s because the AUMF covered those “directly involved in the 9/11 attacks while those in § 1021 [of the NDAA] are specific groups and ‘associated forces’.” Moreover, “the Government has not provided a concrete, cognizable set of organizations or individuals that constitute ‘associated forces,’ lending further indefiniteness to § 1021.” Third, the AUMF is much more specific about how one is guilty of “supporting” the covered Terrorist groups, while the NDAA is incredibly broad and un-specific in that regard, thus leading the court to believe that even legitimate activities could subject a person to indefinite detention.

The court also decisively rejected the argument that President Obama’s signing statement – expressing limits on how he intends to exercise the NDAA’s detention powers — solves any of these problems. That’s because, said the court, the signing statement “does not state that § 1021 of the NDAA will not be applied to otherwise-protected First Amendment speech nor does it give concrete definitions to the vague terms used in the statute.”

The court concluded by taking note of what is indeed the extraordinary nature of her ruling, but explained it this way:


This Court is acutely aware that preliminarily enjoining an act of Congress must be done with great caution. However, it is the responsibility of our judicial system to protect the public from acts of Congress which infringe upon constitutional rights.

I’ve been very hard on the federal judiciary in the past year due to its shameful, craven deference in the post-9/11 world to executive power and, especially, attempts to prosecute Muslims on Terrorism charges. But this is definitely an exception to that trend. This is an extraordinary and encouraging decision. All the usual caveats apply: this is only a preliminary injunction (though the court made it clear that she believes plaintiffs will ultimately prevail). It will certainly be appealed and can be reversed. There are still other authorities (including the AUMF) which the DOJ can use to assert the power of indefinite detention. Nonetheless, this is a rare and significant limit placed on the U.S. Government’s ability to seize ever-greater powers of detention-without-charges, and it is grounded in exactly the right constitutional principles: ones that federal courts and the Executive Branch have been willfully ignoring for the past decade.



UPDATE: I really should mention the rest of the plaintiffs who brought this lawsuit beyond the four well-known ones I named above, because each deserves immense credit for doing this. Alexa O’Brien is an independent journalist who writes for WL Central, regarding WikiLeaks, Guantanamo and other issues, and founded a website to work on America’s corrupted elections, U.S. Day of Rage. Kai Wargalla is a British activist who founded Occupy London and has done extensive work in advocating for WikiLeaks. Jennifer Bolen, who along with Hedges spearheaded the organization of this lawsuit, is an activist with Revolution Truth who did substantial work to defeat the NDAA.

Though I knew a fair amount about it as it proceeded, I hadn’t written about this lawsuit before, largely because I did not expect it to succeed; I anticipated that it would be dismissed on “standing” grounds, the favored tactic (along with the State Secrets privilege) for both the Bush and Obama DOJs to persuade federal courts not to even adjudicate constitutional challenges to the War on Terror powers. Serious kudos to all of the plaintiffs and lawyers here who persevered in what I’m certain they knew would be an uphill battle.

Dennis Leahy
23rd May 2012, 18:59
I did just a quick search for NDAA, just found "Drake" threads that had mentioned NDAA, and obviously didn't search hard enough, then posted.

Looks like mountain_jim was all over the story, as well as 2 others that started posts the very next day after the story hit. Sorry, I'll do a better job of searching here before posting.

Probably need to merge threads... Oh mods?

Dennis

mountain_jim
23rd May 2012, 19:06
It's impossible, using the forum search software, to search 'hard enough', I have found. :)

I just knew where they were and thought referencing these other, low post count threads, would be my contribution to this one.

Plus, I always like to share Greenwald's take on these issues, having read almost every post of his on these subjects since he started blogging in 2005.

Dennis Leahy
23rd May 2012, 19:18
...Plus, I always like to share Greenwald's take on these issues, having read almost every post of his on these subjects since he started blogging in 2005.
Greenwald is an exemplary reporter - one of the few left. Quite probably the best. There is no way the Global Rulers could have ever gotten away with all their BS if Glen's level of integrity and research were the norm - instead of the wild exception.

Dennis

grannyfranny100
24th May 2012, 00:14
And praise be that Judge Katherine Forrest didn't cave into political pressure.

A Simple Human
24th May 2012, 03:48
PA constable to sign resolution opposing NDAA, PATRIOT Act (http://hammeroftruth.com/2012/pa-constable-to-sign-resolution-opposing-ndaa-patriot-act/) (Hammer of Truth)

PA constable to sign resolution opposing NDAA, PATRIOT Act
Posted by vforvandyke (Hammer of Truth) May 21, 2012

We received an interesting press release from Dan Johnson at the People Against the National Defense Act (PANDA) (http://www.peopleagainstndaa.com/) today:

NDAA Resolution Press Release (https://docs.google.com/document/d/1dqg97996c8gIELjP9c-zCkfVoKqWGeph1RR-dfeKNmM/edit?pli=1)

Pennsylvania State Constable Ed Quiggle, Jr., the elected Constable for the City of Sunbury’s 9th Ward, will sign a resolution in opposition to the National Defense Authorization Act of 2012, also known as the NDAA, on Saturday, May 26th, 2012 at 10 a.m., in Cameron Park directly across the street from the Northumberland County Courthouse in Sunbury, Pennsylvania. The NDAA authorizes the federal government to arrest and indefinitely detain Americans and legal aliens without charge or trial.

On January 17th, 2012 the County Commissioners of Elk County, Pennsylvania unanimously passed a resolution opposing the NDAA, titled “To Preserve Habeas Corpus And Civil Liberties.” Sheriff Mike McMoran, Comanche County, Kansas, Sheriff Grayson Robinson, Arapahoe County, Colorado, and former Sheriff Richard Mack have signed resolutions opposing the NDAA and ordering no one in their department to cooperate with the enforcement of the NDAA. Virginia, Maine, and Utah have passed bills opposing and nullifying the NDAA, and many other states have introduced similar bills. Many local governments and groups have already passed resolutions.

Groups across the political spectrum are supporting the nullification and/or repeal of the NDAA, such as the ACLU, Demand Progress, Downsize DC, Gun Owners of America, Japanese American Citizens League, the Tenth Amendment Center, Oath Keepers, Amnesty International, the Patriot Coalition, PANDA – People Against the National Defense Act, Rhode Island Liberty Coalition, the John Birch Society, Reclaim Democracy, Bill of Rights Defense Committee, People’s Campaign for the Constitution, Unitarian Universalist Service Committee, United Church of Christ Justice and Witness Ministries, United Methodist Church General Board of Church and Society, Physicians for Human Rights, Presbyterian Church (USA) Office of Public Witness, Rabbis for Human Rights –North America, National Religious Campaign Against Torture, the Ron Paul and Gary Johnson Presidential campaigns, and many others.

On Wednesday, May 16th, 2012, Rep. Justin Amash (R-MI), Rep. Adam Smith (D-WA), Rep. John Garamendi (D-CA), and Rep. Ron Paul (R-TX) held a press conference about the Smith-Amash Amendment to the NDAA, which would repeal the indefinite detention provisions. On the same day as the press conference, US District Judge Katherine Forrest in Manhattan ruled to temporarily block Section 1021 of the NDAA pending the result of the Hedges v. Obama case. The Smith-Amash amendment failed in the House of Representatives by a vote of 182-236. Both the 10th and 11th District’s representatives, Rep. Tom Marino (R-PA) and Rep. Lou Barletta (R-PA) both voted against the Smith-Amash amendment.

Constable Ed Quiggle, Jr. was elected during the 2011 election as the Republican write-in candidate. He has lived in Sunbury since 1988 and has worked as a freelance journalist. Constable Quiggle says that he is issuing the resolution because he took an oath to the Constitutions of the US and Pennsylvania. He feels the NDAA and the PATRIOT Act violate both constitutions and are in direct conflict with the oath he took and his conscience.

The date of the signing, May 26th, also has some historical significance. “Pennsylvania has a long history of standing up for liberty, and nullifying unconstitutional federal laws,” Constable Quiggle said. On May 26th, 1857 Dred Scott was emancipated. Slaves who were taken to states where slavery was illegal, and could be kidnapped and forced to go back with their masters. There were also kidnappings of fugitive slaves who had escaped to the northern states. One personal liberty law to prevent the kidnapping of fugitive slaves was passed in Pennsylvania in 1847, and is still in effect today. The law is titled, “An Act: To prevent kidnapping, preserve the public peace, prohibit the exercise of certain powers heretofore exercised by Judges, Justices of the Peace, Alderman, and Jailors in this Commonwealth and to repeal certain slave laws.” The Constable believes this act may already partially nullify the NDAA. Also in May 26th history, in 1938 the House Un-American Activities Committee began its first session. The committee would go on to investigate the internment of Japanese-Americans during World War II. The only committee member to oppose the Japanese internment was Rep. Herman Eberharter (D-PA), the rest of the committee seemed to support the internment.

Constable Quiggle said, “I believe I must follow my conscience and my oath to the US and Pennsylvania Constitutions. Opposing unconstitutional laws is the duty of all Americans. We are on the right side, we are patriotic Americans standing up for our inalienable rights that the government does not have the authority to take away from us. I feel all elected officials need to speak out and do whatever possible to oppose and nullify the NDAA.” Constable Quiggle is a member of the ACLU and the Constitutional Sheriffs and Peace Officers Association.

Contact information for the Constable is available on the Office of the Constable for the 9th Ward of the City of Sunbury’s website at www.SunburyPAStateConstable.us (http://www.sunburypastateconstable.us/), e-mail is the preferred method of contact. A copy of the resolution is also available on the website.

It remains to be seen if enforcement of Quiggle’s resolution (PDF) will have as much bite as its press release bark, but it’s clear that the burgeoning trend of truly organized opposition at all levels of government is a growing occurrence that will certainly be hard to ignore.

Also not to miss is how close of a (write-in) election this was (http://dailyitem.com/0100_news/x158063746/One-vote-deadlock-decided-by-draw/print), with the winner being decided by drawing numbers (1-16) out of a jar.

Now, I realize this is not as "big" as a judge issuing an injunction in federal court; however, I do feel the more government employees, on all levels, opposing the NDAA the merrier! :thumb: - A.S.H.

mountain_jim
24th May 2012, 19:33
In a related development, the fight for our constitutional rights goes on

http://www.salon.com/2012/05/24/warrantless_spying_fight/singleton/ for the many links that are behind this research.



Thursday, May 24, 2012 09:37 AM EDT
Warrantless spying fight

Obama officials demand full, reform-free renewal of the once-controversial power to eavesdrop without warrants
By Glenn Greenwald

In 2006, The New York Times‘ James Risen and Eric Lichtblau won the Pulitzer Prize for their December, 2005 article revealing that the Bush administration was eavesdropping on the electronic communications of Americans without the warrants required by the FISA law (headline: “Officials Say U.S. Wiretaps Exceeded Law”). Even though multiple federal judges eventually ruled the program illegal, that scandal generated no accountability of any kind for two reasons: (1) federal courts ultimately accepted the arguments of the Bush and Obama DOJs that the legality of Bush’s domestic spying program should not be judicially reviewed; and (2) the Democratic-led Congress, in 2008, enacted the Bush-designed FISA Amendments Act, which not only retroactively immunized the nation’s telecom giants for their illegal participation in that spying program and thus terminated pending lawsuits, but worse, also legalized the vast bulk of the Bush spying program by vesting vast new powers in the U.S. Government to eavesdrop without warrants (in his memoir, President Bush gleefully recounted that the 2008 eavesdropping bill supported by the Democrats gave him more than he ever expected).

It was then-Sen. Obama’s vote in favor of the FISA Amendments Act that caused the first serious Election Year rift between him and his own supporters. Obama’s vote in favor of the bill was so controversial for two independent reasons: (1) when he was seeking the Democratic nomination only a few months earlier and needed the support of the progressive base, Obama unequivocally vowed to filibuster “any bill that includes retroactive immunity for telecommunications companies,” only to turn around once he had secured the nomination and not only vote against a filibuster of that bill but then vote in favor of the bill itself; and (2) the bill itself legalized vast new powers of warrantless eavesdropping: powers which the Democratic Party (and Obama) had spent years denouncing (as Yale Law Professor Jack Balkin put it at the time: “Through the FISA Amendments Act of 2008, Congress has legitimated many of the same things people are now complaining about”). When Obama announced his reversal, his defenders insisted he was only doing it so that he could win the election and then use his power as President to stop warrantless eavesdropping abuses, while Obama himself claimed he voted for the FISA bill “with the firm intention — once I’m sworn in as President — to have my Attorney General conduct a comprehensive review of all our surveillance programs, and to make further recommendations on any steps needed to preserve civil liberties and to prevent executive branch abuse in the future.”

The only positive aspect of the FISA Amendments Act of 2008 was that Congress imposed a four-year sunset provision on the new warrantless eavesdropping powers it authorized. That sunset provision is set to expire and — surprise, surprise — the Obama administration, just like it did for the Patriot Act, is demanding its full-scale renewal without a single change or reform:


A key Senate panel voted Tuesday to extend a contested 2008 provision of foreign intelligence surveillance law that is set to expire at year’s end.

The vote is the first step toward what the Obama administration hopes will be a speedy renewal of an expanded authority under the Foreign Intelligence Surveillance Act to monitor the U.S. e-mails and phone calls of overseas targets in an effort to prevent international terrorist attacks on the country.

Director of National Intelligence James R. Clapper Jr. called the move by the Senate Select Committee on Intelligence “important” to the effort to ensure that authorities can identify terrorist operatives and thwart plots. Extending the provision is the intelligence community’s top legislative priority this year.

In February, Attorney General Eric Holder and Director of National Intelligence James Clapper wrote a joint letter to Congressional leaders demanding “speedy . . . reauthorization of these authorities in their current form” — “without amendment.” The ACLU’s Michelle Richardson yesterday wrote:


Remember the George W. Bush warrantless wiretapping program? The one that was so illegal that Congress had to pass a special law to ensure that no one was prosecuted for it or sued by their customers for facilitating it? And was found by independent reviewers to be pretty pointless anyway? And was then brilliantly codified and written into stone by Congress? And which almost immediately went off the rails, being used to collect all sorts of stuff it wasn’t supposed to? It’s back!

The FISA Amendments Act of 2008 (FAA) rewrote our surveillance laws, which had generally required a warrant or court order for surveillance of people in the US. Under the FAA, the government can get a year-long programmatic court order for general bulk collection of Americans’ international communications without specifying who will be tapped. It is up to the administration to decide that on its own after the fact, without any judicial review. . . . Once the National Security Agency sucks up these phone calls, texts, emails and Internet records, it can use them pursuant to secret rules that they swear protect our privacy.

That it is now the Obama administration serving as chief crusaders for warrantless eavesdropping powers — once the symbol of Bush radicalism — is telling enough. But there are numerous key facts that make the administration’s demands for reform-free renewal all the more remarkable:

First, even Senators on the Intelligence Committee — such as Democrats Ron Wyden and Mark Udall — have made repeatedly clear that there are basic facts about how this law affects the communications of ordinary Americans which even they have not been provided, including even a rough estimate of how many Americans have had their emails read or calls listened to by the NSA under this law.

Second, the Director of National Intelligence, in response to the inquiries from those two Senators, has claimed that “it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority of the [FISA Amendments Act].” Note that he cannot even identify the number of Americans whose communications have been actually “reviewed,” not merely stored, by the NSA (The Washington Post previously reported that “every day, collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications”). How can Congress even think about renewing these warrantless eavesdropping powers when even the members on the Intelligence Committee are deprived of the most basic information about how they are used and how many Americans have their communications invaded without warrants?

Third, there is ample evidence of recent abuse of the warrantless surveillance powers vested by the FAA. As the ACLU explained in its letter to Congress this week urging reforms to the bill:


(text on images at link)


Of course, now that there’s a Democrat in the Oval Office, many Good Progressives discount claims made by the ACLU (here, for instance, is one of them today — Oliver Willis, a Research Fellow at Media Matters — denouncing the ACLU (and me) as “hysterical” for our concerns raised over domestic drones, both of the surveillance and armed variety). So for those types of individuals: here’s the New York Times article detailing the rampant abuse under this law.

Fourth, and perhaps worst of all, the Obama administration is aggressively seeking to block any efforts to have federal courts rule on the constitutionality of this new FISA law. Immediately after its 2008 passage, the ACLU, on behalf of journalists, activists, and writers, sued to invalidate the law on the ground that it violates the Fourth Amendment rights of Americans by subjecting them to warrantless eavesdropping. As they always do in such cases, the Bush and Obama DOJs demanded dismissal of the suit on the ground of “standing”: namely, they asserted the definitively Kafkaesque claim that because the list of Americans who have their conversations intercepted is kept secret, the plaintiffs cannot prove they were eavesdropped on under the law, and thus lack “standing” to challenge it.

This warped argument — along with the “state secrets” privilege — is the one that the DOJ has most frequently invoked to place their War on Terror conduct beyond the reach of the rule of law. But in the ACLU lawsuit, something unusual happened: a federal appeals court panel refused to dismiss the ACLU’s lawsuit on this ground, holding that the plaintiffs’ reasonable fear that they would be subject to the warrantless eavesdropping powers conferred “standing” entitling them to challenge the law. The full Second Circuit Court of Appeals (by a 6-6 vote) refused to reverse that ruling, creating an important precedent that would allow citizens to challenge an unconstitutional law even when the Government’s secrecy prevents them from proving that they were personally subjected to it (it was this Second Circuit precedent that a federal judge recently relied upon in ruling that various writers and journalists could challenge the constitutionality of the NDAA even though they were not yet indefinitely detained under it, and after finding standing on that basis, she then halted use of the NDAA’s detention powers on the ground that it is likely unconstitutional).

But rather than let that ACLU standing precedent remain — and then proceed to defend the constitutionality of the 2008 eavesdropping law on the merits — the Obama DOJ urged the Supreme Court to review and overturn the Second Circuit’s ruling. This week, the Supreme Court announced it was accepting this case for review, and many legal experts believe they would not have agreed to review the ACLU ruling unless they intended to overturn it. So as the Obama administration pressures Congress to renew this eavesdropping law without a single reform, they simultaneously act to block courts even from ruling whether the law is constitutional. And in the process, they threaten to obliterate one of the very few judicial precedents that results in government leaders being subjected to minimal accountability under the law for their secret behavior.

Fifth, the Obama administration has perfectly adopted the standard tactic used by Bush officials to coerce approval of any surveillance power they want and to smear anyone questioning those powers. Namely, they insist that the Terrorists will get us all if they do not get their way, and that anyone opposing their demands will have the blood of Americans on their hands. Recall Harry Reid’s attacks on those urging reforms to the Patriot Act last year (“‘When the clock strikes midnight tomorrow, we will be giving terrorists the opportunity to plot against our country undetected,’ Reid said, referring to the law’s expiration this week. ‘The senator from Kentucky is threatening to take away the best tools we have for stopping them’”). Similarly, Holder and Clapper warn that rapid, reform-free extension of their eavesdropping powers is necessary “to avoid any interruption in our use of these authorities to protect the American people”: because, apparently, just like Bush officials insisted, it’s impossible to Keep America Safe if you first have to obtain warrants before eavesdropping on them.

The continuously expanding Surveillance State in the United States is easily one of the most consequential and under-discussed political developments. And few are doing more to ensure it continues than top-level Obama national security officials.

* * * * *