President Obama just stood before the nation and said,
“And if you look at the reports — even the disclosures that Mr. Snowden has put forward — all the stories that have been written, what you’re not reading about is the government actually abusing these programs and listening in on people’s phone calls or inappropriately reading people’s emails. What you’re hearing about is the prospect that these could be abused. Now, part of the reason they’re not abused is because these checks are in place, and those abuses would be against the law and would be against the orders of the FISC.”
Even as he was speaking, his Administration released a document that said, in part,
– Since the telephony metadata collection program under Section 215 was initiated, there have been a number of significant compliance and implementation issues that were discovered as a result of DOJ and ODNI reviews and internal NSA oversight. In accordance with the Court’s rules, upon discovery, these violations were reported to the FISC, which ordered appropriate remedial action. The incidents, and the Court’s responses, were also reported to the Intelligence and Judiciary Committees in great detail. These problems generally involved human error or highly sophisticated technology issues related to NSA’s compliance with particular aspects of the Court’s orders. The FISC has on occasion been critical of the Executive Branch’s compliance problems as well as the Government’s court filings. However, the NSA and DOJ have corrected the problems identified to the Court, and the Court has continued to authorize the program with appropriate remedial measures. –
The President’s message really boiled down to this: It’s more important to persuade people surveillance is useful and legal than to make structural changes to the programs.
While Obama’s administration has worked hard to prevent details of these violations from becoming public and delayed even the Judiciary Committees from being briefed, some of them may come out as part of the DOJ Inspector General review that the Administration tried to thwart in 2009.
Also, even as he was speaking, EFF announced the government will turn over a redacted copy of the October 3, 2011 FISA Court ruling that found the minimization procedures for Section 702 violated the Fourth Amendment. A new Guardian report suggests that ruling may pertain to the use of a backdoor to conduct warrantless searches on US person content already collected under Section 702. (While many commentators have insisted the Guardian report provides no evidence of abuse, NSA and DNI’s Inspectors General refused to count how often Americans have been searched in such a way, effectively refusing to look if it has been abused.)
As Shane Harris astutely describes, all of this kabuki is designed solely to make people feel more comfortable about these dragnets.
And the President’s message really boiled down to this: It’s more important to persuade people surveillance is useful and legal than to make structural changes to the programs.
“The question is, how do I make the American people more comfortable?” Obama said.
Obama’s overriding concern was that people didn’t believe him when he said there was “nothing to fear.”
But the President just stood up and claimed the government hasn’t abused any of these programs.
It has, by its own admission, violated the rules for them.
Meanwhile, Ron Wyden has already released a statement applauding some of these changes while noting that Obama is still minimizing how bad the violations have been.
Notably absent from President Obama’s speech was any mention of closing the backdoor searches loophole that potentially allows for the warrantless searches of Americans’ phone calls and emails under section 702 of the Foreign Intelligence Surveillance Act . I believe that this provision requires significant reforms. I am also concerned that the executive branch has not fully acknowledged the extent to which violations of FISC orders and the spirit of the law have already had a significant impact on Americans’ privacy.
Ultimately, details of these violations will come out, and are on their way out in some form already. If this press conference was designed solely to make us feel better, wouldn’t Obama have been better advised to come clean about these violations than to pretend they don’t exist?
Fox Shepard over James Clapper: At Least China Admits Monitoring People while We Lie About It … – YouTube
These punks don’t represent justice, they’re just serving their Party’s interest!
The Senate Judiciary Committee and the Supreme Court have been bickering—in a dignified sort of way—over how the justices handle ethical issues, including conflicts of interest. Democrats on the committee think the justices should be bound by the same conduct code that applies to all other federal judges. The court thinks the Senators should mind their own business.
Now a group of congressional Democrats are set to introduce legislation that would “apply stricter ethical standards to the Supreme Court,” amid concerns that justices have been engaging in questionable behavior.
The proposed Supreme Court Ethics Act of 2013 would subject the justices to the Code of Conduct for United States Judges, a set of standards that currently applies to all other federal judges. Those rules would have forced the justices to recuse themselves from certain cases or explicitly prohibited some high-profile activities that have attracted scrutiny and demand for reform in the past few years.
The controversy over Supreme Court ethics re-emerged late last month when Virginia “Ginni” Thomas, the wife of Supreme Court Justice Clarence Thomas — a well-connected tea party consultant held an integral role in Groundswell, a group of conservatives to organize their fight against liberals, mainstream Republicans, and Karl Rove. Her political activity has once again raised questions about whether she is creating conflicts of interest for her husband, and whether he should be forced to recuse himself from cases that involve Ginni’s work.
Letting the Supreme Court make its own rules invites abuse — as for example in the 2000 presidential election when Clarence Thomas and the other justices, were allowed to help decide whether a recount (which would have awarded the election to Al Gore) proceed when Thomas’ wife had been given a lucrative position on the Bush “transition team”. Depending on how Thomas voted, his wife either would or would not have a job. That was the most naked kind of conflict of interest — Thomas shouldn’t have recused himself. Such behavior destroys the credibility of the highest legal authority in the land.
Such calls for Thomas to recuse from cases hit a fevered pitch when the Affordable Care Act was before the high court and Ginni was actively lobbying against it. As it turned out, there’s no mechanism for concerned citizens to complain about a Supreme Court justice, or even a clear set of rules that the justices must follow in making recusal decisions. Supreme Court justices are exempt from the Code of Conduct for United State Judges, the rulebook that every other federal judge in the country has to follow.
That code would have prohibited the justices from a number of controversial activities the Supreme Court has engaged in over the past few years. In 2011, for instance, Thomas and Justice Antonin Scalia headlined a fundraiser for the conservative legal group, The Federalist Society. Ordinary federal judges couldn’t have done that. Both also have attended hush-hush political events hosted by Koch Industries that are billed as efforts “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” Koch Industries is owned by the right-wing Koch family that’s been dumping millions of dollars in the Republican politics, particularly after the court decided in Citizens United to allow unlimited corporate money into the electoral system. The code also requires federal judges to recuse themselves from cases in which a spouse or family member has a financial interest, a rule that might apply to the Thomases.
The liberal Alliance for Justice has argued that the appearance of Scalia and Thomas as speakers at a 2011 dinner fundraiser for the conservative Federalist Society is reason for a closer look at Supreme Court ethics. Legal experts also questioned Scalia’s appearance at a 2012 fundraiser for Friends of Abe, a group of Hollywood conservatives that has championed Republican causes and candidates.
Several members have decided to try to do something about the appearance of impropriety by some of the justices. On Thursday, Rep. Louise Slaughter (D-N.Y.), Sen. Richard Blumenthal (D-Conn.), Sen. Chris Murphy (D-Conn.) and Sen. Sheldon Whitehouse (D-R.I.) — will be the latest move to impose binding ethics rules on the justices. Murphy introduced a similar effort in 2011, when he was a congressman. Slaughter has been pressing the issue since 2011, when she and a group of 19 other representatives raised questions over apparent discrepancies in Thomas’ income disclosure forms. In 2012, a group of congressional lawmakers including Slaughter asked Chief Justice John Roberts to voluntarily adopt the Judicial Code of Conduct. He declined.
More than 125,000 people have signed a petition calling on Chief Justice John Roberts Jr. to apply the Code of Conduct to the court. But Roberts has been pretty adamant that he thinks the justices are perfectly capable of policing themselves without the need for silly codes (codes which most of the sitting justices once had to abide by on a lower court). If the justices continue to operate above the law, the public should and will lose confidence in the already corrupt system.
The Supreme Court’s traditional resistance to a binding code of conduct could make the bill difficult to implement if passed. The legislation could also open up a legal fight over the separation of powers between the legislative and judicial branches.
Without buy-in from Roberts, any attempt, even by Congress, to require the justices to give themselves a written code of ethics is probably a tough sell. The new bill, if it could even pass through the full Congress (also doubtful), could set off an epic separation of powers battle between the two branches of government. A spokesman from Slaughter’s office says that the bill is absolutely constitutional, as Congress has the authority to regulate the administration of the court—setting the number of justices and whatnot. Still, it’s possible that the court could put up a fight—a fight that might ultimately have to be decided by….the Supreme Court.
D.C. Circuit Court: The Second Most Important Court in America … (Note: The D.C. Circuit Court is actually the third most important court in America. The secret court of FISC is the most powerful, followed by the Supreme Court.)
Natural law, or the law of nature (Latin: lex naturalis), is a system of law that is purportedly determined by nature, and thus universal. Classically, natural law refers to the “use of reason to analyze human nature—both social and personal”—and deduce binding rules of moral behavior from it. Natural law is classically contrasted with the positive law of a given political community, society, or state, and thus serves as a standard by which to criticize said positive law. In legal theory, on the other hand, the interpretation of positive law requires some reference to natural law. On this understanding of natural law, natural law can be invoked to criticize judicial decisions about what the law says but not to criticize the best interpretation of the law itself. Some scholars use natural law synonymously with natural justice or natural right (Latin ius naturale),while others distinguish between natural law and natural right.
Although natural law is often conflated with common law, the two are distinct in that natural law is a view that “certain rights or values” are inherent in or universally cognizable by virtue of human reason or human nature, while common law is the legal tradition whereby certain rights or values are legally cognizable by virtue of judicial recognition or articulation.
Natural law theories have, however, exercised a profound influence on the development of English common law. It has been cited as a component in the United States Declaration of Independence and the Constitution of the United States, as well as in the Declaration of the Rights of Man and of the Citizen. Declarationism states that the founding of the United States is based on Natural law.
Positive law (lat. ius positum) is the term generally used to describe man-made laws which oblige or specify an action. It also describes the establishment of specific rights for an individual or group. Etymologically, the name derives from the verb to posit.
What makes the law legitimate?
What is a legitimate source of law?
What binds people to obey the law?
Is there an essential connection between the law and morality?
Can the content of a law disqualify it from being considered a legitimate law, which must be obeyed?
This debate has been taken up by two major groups of legal theorists: Natural law theorists and Legal positivist.
Natural Law theorists such as Plato, Aristotle, and St. Thomas Aquinas argue that a “law is only just and legitimate if it promotes the common good.” For Legal Positivists like John Austin, H.L.A Hart, and Thomas Hobbes, “a law is legitimate if it has been enacted through the proper channels by someone with the power to do so regardless of the content of that law.” While each theorist presents his own explanation, each seeks to answer these crucial questions about law and society.
Legitimate laws must come from legitimate sources. Legal Positivists argue that for the source of law to be legitimate, it must come from a source of power. For Austin, the source of law must be the only person who the subjects are in the habit of obeying. They must also be willing to back their sanctions and laws with credible force. Natural Law theorists posit that the “source of law is divine” or can be discovered and formed according to what is just and will promote the common good.
Aquinas takes the stance that the source of divine law is God. Human laws are derived from these divine laws and practical reason. Aristotle and Plato agree that concepts of law and justice are derived from nature and reason, which govern actions to move toward the higher good. Aquinas makes the distinction that the person or persons who makes the law must be in care of the community. This is similar to Hobbes in that he believes the duty of those who make law to be to care for and protect the society that they govern. Hobbes finds a middle path on the topic of the source o law. He contends that the individual subordinates himself to the sovereign who can create and enforce laws according to a social contract with the people.
Hart differs from Austin in that he believes that the sovereign cannot simply make laws as he or she pleases. The source of law is the sovereign who produces laws through following primary and secondary rules. Natural Law theorist St. Thomas Aquinas argues that human law is legitimate only if it is in line with divine law and promotes universal happiness. All law is fashioned to the common welfare of men.
He posits that neglecting God’s law or the universal happiness in the formation of a law makes it unjust. Accordingly, Aquinas advances that an unjust law is not a legitimate law at all and does not have to be obeyed.
In stark contrast, Legal Positivist John Austin contends that legitimate law is nothing more than commands from a sovereign to the people who must obey him backed by credible threats and sanctions.
The law’s legitimacy is completely independent of the morality of its content and must always be obeyed. It draws its validity from the power of the sovereign who is the only ruler that subjects are in the habit of obeying. He argues that the law as it exists is separate from what it ought to be. Natural Law Theorists heckle this notion because it shows no concern for morality or protection of the people. Austin maintains the division between morality and the law and concludes that the content of the law is legitimate through the power that created it.
On the more moderate end of the Legal Positivist tradition is a philosopher who was influenced by both Natural and Positivist jurisprudence. Thomas Hobbes argues that the law receives its legitimacy from a social contract between the people who are governed and their sovereign. He likens government to a biblical sea monster. Like an anatomical head, the sovereign rules over the body of subjects whose power is beneath it. Like the monster, the government is all-powerful. Yet unlike Austin, he believes there to be
limits to political obligation. He argues that when a citizen’s life is in danger, they have the right to disobey the government or a law.
Challenging Austin’s idea that the law is legitimate because of the credible force of the sovereign is H.L.A. Hart.
He agrees with Hobbes’ idea that laws are social contracts between the government and the people. He contends that legitimate law is not just commands backed by real force and sanctions, but because it has been enacted through primary and secondary rules. If a law has been dually enacted where primary rules regulate conduct and secondary rules allow primary rules to be created or altered then it is legitimate and must be obeyed.
Additionally, Hart sees that Austin’s Command Theory presents a problem in the varying types of laws that he believes need to be in place, “notably those conferring legal powers to adjudicate or legislate (public powers) or to create or vary legal relations (private powers) which cannot, without absurdity, be construed as orders backed by threats.”
Similar to the concept of legitimate law is the concept of what is just. Natural Law theorists Plato and Aristotle advance the idea justice is a virtue. It is an inseparable part of oneself and is a driving force toward the common good. Those who subscribe to the Natural Law tradition claim that what is good and just is based on an objective standard of what is right and wrong. Plato argues that there is an order to the universe which He posits that the just man can do nothing to harm anyone else and does his part as an individual in society to help it function. Aristotle posits that each man should get what is due to him and that every action has a motive and it is to move toward the higher good. He also posits that justice is more than just being honest and following the obligations provided by the law. This implies that the law is open to interpretation and criticism if the content obligates one to go against the goal of a peaceful coexistence. Aristotle agrees with Plato in giving each man his right is just as long as it promotes the good, or “distributive justice”.
They argue that the law is out in the world waiting to be discovered. The law reveals itself when people live virtuously to help achieve the common good. For example,
“Suppose that a friend when in his right mind has deposited arms with me and he asks for them when he is not in his right mind, ought I to give them back to him? No one would say that I ought or that I should be right in doing so, any more than they would say that I ought always to speak the truth to one who is in his condition.”
Their theoretical perspectives can be attributed to their philosophical time period as opposed to the more practical thinkers of later times.
Once legitimate sources have created legitimate and just laws, there must be a reason as to why people are compelled to follow or obey them. Natural Law subscribers believe that the ultimate end is the greater good and law is ordered to serve the well-being of man. Good laws should be followed because they follow reason and are inherently valuable and are a means to the ultimate human end or telos.
Additionally, they argue that man was given reason, which distinguishes him from beasts. It is this reason, which allows him to control his actions and impulses to act justly. Acting justly and virtuously leads to the good life and the ultimate happiness.
Opposite these thinkers is Austin. He believes that people are obedient to the letter of the law because if they do not then they will be “punished with force.”
Fear becomes a motivator
Each philosopher sought to answer what makes law or justice legitimate. For some such as the Natural Law theorists, it comes a drive toward the greater good, reason and the divine through discovery or someone in the care of the community; and is maintained through the same means, which discovered and created it. For others such as Legal positivists it comes from power or a social contract, which binds subjects with fear, force, or reason. The two groups intersect and diverge at varying points, but all ultimately seek to understand a part of what is so central to the human condition, the law.
Leviathan by Thomas Hobbes The Great Legal Philosophers. Ed. Clarance Morris.Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 109-133. Print. Aquinas, Thomas, St.. “ Summa Theologica.”
The Great Legal Philosophers. Ed. Clarancee Morris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 57-79. Print.Austin, John. “ Lectures on Jurisprudence.”
- The Great Legal Philosophers. Ed. ClaranceMorris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 335-363. Print. Hart, H.L.A.
Concept of Law . Oxford, London: OxfordUniversity Press, 1961. 76-107. Print. Aristotle, . “ Nicomachean Ethics – The politics.”
‘The Great Legal Philosophers’ Ed. ClaranceMorris. Philadelphia, Pennsylvania: University of Pennsylvania Press, 1971. 26-40. Print.
Plato Dialogues of Plato translated into English with Analyses and Introductions by B. Jowett, M.A. in Five Volumes. 3rd edition revised and corrected (Oxford University Press,1892). Chapter: BOOK I *Ideas were paraphrased from the above works cited.