Group items tagged

This morning, the Second Circuit issued a follow-on ruling to its May decision in ACLU v. Clapper (which had held that the NSA’s bulk telephone records program was unlawful insofar as it had not properly been authorized by Congress). In a nutshell, today’s ruling rejects the ACLU’s request for an injunction against the continued operation of the program for the duration of the 180-day transitional period (which ends on November 29) from the old program to the quite different collection regime authorized by the USA Freedom Act. As the Second Circuit (in my view, quite correctly) concluded, “Regardless of whether the bulk telephone metadata program was illegal prior to May, as we have held, and whether it would be illegal after November 29, as Congress has now explicitly provided, it is clear that Congress intended to authorize it during the transitionary period.” So far, so good. But remember that the ACLU’s challenge to bulk collection was mounted on both statutory and constitutional grounds, the latter of which the Second Circuit was able to avoid in its earlier ruling because of its conclusion that, prior to the enactment of the USA Freedom Act, bulk collection was unauthorized by Congress. Now that it has held that it is authorized during the transitional period, that therefore tees up, quite unavoidably, whether bulk collection violates the Fourth Amendment. But rather than decide that (momentous) question, the Second Circuit ducked:

We agree with the government that we ought not meddle with Congress’s considered decision regarding the transition away from bulk telephone metadata collection, and also find that addressing these issues at this time would not be a prudent use of judicial authority. We need not, and should not, decide such momentous constitutional issues based on a request for such narrow and temporary relief. To do so would take more time than the brief transition period remaining for the telephone metadata program, at which point, any ruling on the constitutionality of the demised program would be fruitless. In other words, because any constitutional violation is short-lived, and because it results from the “considered decision” of Congress, it would be fruitless to actually resolve the constitutionality of bulk collection during the transitional period.

Hopefully, it won’t take a lot of convincing for folks to understand just how wrong-headed this is. For starters, if the plaintiffs are correct, they are currently being subjected to unconstitutional government surveillance for which they are entitled to a remedy. The fact that this surveillance has a limited shelf-life (and/or that Congress was complicit in it) doesn’t in any way ameliorate the constitutional violation — which is exactly why the Supreme Court has, for generations, recognized an exception to mootness doctrine for constitutional violations that, owing to their short duration, are “capable of repetition, yet evading review.” Indeed, in this very same opinion, the Second Circuit first held that the ACLU’s challenge isn’t moot, only to then invokes mootness-like principles to justify not resolving the constitutional claim. It can’t be both; either the constitutional challenge is moot, or it isn’t. But more generally, the notion that constitutional adjudication of a claim with a short shelf-life is “fruitless” utterly misses the significance of the establishment of forward-looking judicial precedent, especially in a day and age in which courts are allowed to (and routinely do) avoid resolving the merits of constitutional claims in cases in which the relevant precedent is not “clearly established.” Maybe, if this were the kind of constitutional question that was unlikely to recur, there’d be more to the Second Circuit’s avoidance of the issue in this case. But whether and to what extent the Fourth Amendment applies to information we voluntarily provide to third parties is hardly that kind of question, and the Second Circuit’s unconvincing refusal to answer that question in a context in which it is quite squarely presented is nothing short of feckless.

On July 19, the Trump administration announced that it would end the CIA’s covert program aimed at arming and training terrorist-linked “moderate rebels” in Syria, sparking hope among some Trump supporters that he was finally enacting the anti-interventionist rhetoric of his campaign. However, a recently released report shows that the Pentagon has picked up the slack left by the end of the CIA’s program — pumping billions of dollars worth of weapons into the hands of Syrian “rebels,” while attempting to mask the paper trail and their suppliers’ ties to organized crime. The report, published Tuesday by the Organized Crime and Corruption Reporting Project (OCCRP) and the Balkan Investigative Reporting Network (BIRN), provides conclusive evidence that the Pentagon plans to provide up to $2.2 billion in weapons to Syrian “rebel” groups, particularly Kurdish militant groups like the Syrian Democratic Forces (SDF). While the Pentagon has been arming “rebels” since 2015, the Department of Defense began requesting increased funding for the program once the CIA covert arms program was ostensibly slated to shut down

While the Pentagon has been arming “rebels” since 2015, the Department of Defense began requesting increased funding for the program once the CIA covert arms program was ostensibly slated to shut down. The Pentagon has requested an additional $322.5 million for the financial year ending October 2017 and $261.9 million for the following 12 months. For fiscal years 2017 and 2018, the budget for the program has been set at $584 million while another $900 million has been earmarked to continue the program through 2022.

The post-9/11 wars in Iraq, Afghanistan, and elsewhere have been fought with borrowed money, enough to require up to $8 trillion in interest payments in coming decades, a new report says. Unlike America’s previous wars, its 21st-century conflicts have been paired not with a tax hike or massive sale of U.S. bonds, but a tax cut. The federal government has been operating at a deficit since 2002, accruing a national debt that now totals $20 trillion and counting. “We have to recognize that we have been borrowing for 16 years to pay for military operations,” said Sen. Jack Reed, the ranking member of the Senate Armed Services Committee. It’s the “first time really in history with any major conflict that we have borrowed rather than ask people to contribute to the national defense directly, and the result is we’ve got this huge fiscal drag…that we’re not really accounting for or factoring into deliberations about fiscal policy as well as military policy.” The 2017 report from Brown University’s Costs of War Project arrives as U.S. lawmakers and President Donald Trump strive to enact tax changes that will add at least $1.5 trillion to the national debt.