“congress lets the nsa run amok” jeffrey rosen. congress, nsa and president: congress, nsa and...

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“Congress lets the NSA run Amok” Jeffrey Rosen

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Page 1: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

“Congress lets the NSA run Amok”

Jeffrey Rosen

Page 2: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Congress, NSA and President:

Congress, NSA and President: Let Courts Deal with It

Two NSA programs:

1) Collecting Phone RecordsViolates Stored Communication Act: passed to prohibit this kind of surveillance

2) Intercepted Phone conversations Violates Foreign Intelligence Surveillance Act (FISA)

Congress “seems content to let courts take the lead in striking down Bush’s domestic spying programs…” rather than hold “congressional investigation” and pass new laws in respond to spying programs.

Page 3: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Courts and Civil Liberties

Courts: Inconsistent Record on Civil Liberties“The courts have a checkered history when it comes to protecting civil

liberties from abuses of executive power.”

Courts and Congress: Need to Work Together“Most advances for civil liberties in the postwar era came from Congress

and the courts working as partners, rather than from the courts alone.”

If Congress is serious about preventing “illegal surveillance,” it needs to play a role, cannot leave it to the Courts.

Page 4: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Court and Public Opinion

Court and Public Opinion (2)Court tends to “mirror…current in public opinion.” Court has rarely charted

its own course, that is, it tends to follow the President and the Congress (and public opinion).

Example:Court upholds…(with public opinion)

1) Convictions of dissenters during WWI2) Detention of Japanese Americans during WWII3) Conviction of communist leaders during cold war4) Only when public opinion turned against govt did

court support dissenters.…

Page 5: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Court and Public Opinion

Civil Liberties and Civil Rights Cases: 1953-1994“Court roughly in sync with public opinion.”

Page 6: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Congress, Civil Rights and Liberties

Congress: Defender of Civil Rights and Liberties

Examples:Congress debated and rejected features of Wilson’s Espionage Act (1917), including a provision for censoring the press… (some Bush supporters have tried to invoked this very provision in reaction to NY Times story about NSA program)

Despite Congress’ concern, Courts interpreted Espionage Act very broadly.

Court Finally Embraces Free Speech (1937)Even so, Court was behind Congress, which had already decided to “ban

[speech] when it threatened to incite illegal conduct” in keeping with public opinion.

Page 7: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Courts and Congress

Court: Not Always So Passive in Face of Executive Power, esp when Congress Supports Court

Courts have checked the president, but the Court has been “most effective” when acts with the backing of Congress…

Page 8: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Courts and the Congress

When the Court failed to challenge President:

Examples:Korematsu Case (1944) detention of Japanese Americans in WWII.

When court did check president, with Congressional support

ExamplesEndo Case: But, at the same time Court rejected “ongoing executive detentions,” which the President had been pushing, but Congress rejected, and instead insisted that president needed Congressional approval…

Page 9: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Courts and the Congress

When court did check president, with Congressional support

Electronic SurveillancePrivacy Acts (1960, 1970s): Court offered framework, Congress passed the laws

FISA: Foreign Intelligence Surveillance Act (1978)Stored Communications Act (1986)Congress passed laws “in response to Court Opinions that invited Congressional action…” (3)

Page 10: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Court and President

Post 9/11: Both President and Courts in Unilateral Mood: Bush and Obama ignores other Branches

President has not included Congress or Courts in the process whereby terror suspects are detained…

Instead, he made up procedures for preventative detentions on the fly…

Court Response: Limit Bush, but did not Invite Congressional Action

Hamdi Case: Court opinion: Congress gave power to detain, but detained US citizen have right to challenge their arrest. No role for Congress specified

Page 11: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

President and Congress

Presidential Response: Bush and Obama Emboldened by Congress InactionBush and Obama read Congress’ Sept 11 Resolution as authorizing

surveillance programs. Most of the Court has rejected an “expansive view of ‘use of force’ resolution,” but it did not invite Congress to specific position, so Congress has not specified position.

If Court had been more decisive, it might have provoked Congress to clarify its position…

Example: Court gave Guantanamo Bay detainees right to file petitions of habeas corpus challenging detention, Congress overruled this…

Page 12: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Congressional Inaction

Why has Congress been so Passive?Has a Republican Congress been reluctant to check Bush or Obama,

president appears to have assumed this.

Will Congress Ever Respond? Public and Congress are both divided along partisan lines over NSA

programs.

Page 13: “Congress lets the NSA run Amok” Jeffrey Rosen. Congress, NSA and President: Congress, NSA and President: Let Courts Deal with It Two NSA programs: 1)

Active, Balanced Government

Good LegislationRewrite FISA, or require Leg and Jud oversight of Pres. But, Republicans

seem unwilling to consider any restriction on President.

Congress and Courts RoleCongress best serves country when it imposes legal restrictions on

president, not when it tried to impeach him…

Court role is to reflect on and enforce const. law…

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