Archive for law

An Open Letter to the Honorable Chuck Grassley

Posted in Law & Justice, Social & Political with tags , , , , , , , on July 12, 2017 by xaipe

"History shows that the ten-year term limit isn't there to protect the FBI Director from politicians or politics; it's there to protect–to help prevent the FBI Director from overreaching or abusing power."

Dear Senator,

I directly quote you above to highlight a serious factual error in your statement. I'm not sure what history text you're consulting for this position, but I would suggest you find another source, perhaps documents from your own Senate.

Case in point, from the 2nd Session of the 93rd Congress, Report No. 93-1213, Calendar No. 1151, Ten-Year Term For FBI Director:

"The purpose of this bill is to achieve two complementary objectives. The first is to insulate the Director of the Federal Bureau of Investigation from undue pressure being exerted upon him from superiors in the Executive Branch. The second is to protect against an FBI Director becoming too independent and unresponsive."

As Chair of the United States Senate Committee on the Judiciary, the same position you now occupy, Senator Robert Byrd would be an excellent source for you to reference. As I think should be clear from the above citation, you are clearly incorrect in stating that the ten-year term limit for the FBI Director isn't meant to insulate the Director from undue political influence.

I would further argue that you fail to comprehend the meaning of the plain English language in the amendment itself:

"(b) Effective with respect to any individual appointment by the President, by and with the advice and consent of the Senate, after June 1,1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years. A Director may not serve more than one ten-year term. The provisions of subsections (a) through (c) of section 8335 of title 5, United States Code, shall apply to any individual appointed under this section."

—S. 2212 (94th): Crime Control Act, Sec. 203 (emphasis mine)

I highlighted the relevant language so that we might operate from the same set of facts. The law says clearly that the term of the Director "shall be ten years." This reminds me of other language that seems familiar, i.e. "Congress shall pass no law…" within the text of the Bill of Rights. I draw this parallel for a reason.

We take the language in the Bill of Rights to mean what it says, so when we read:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

We understand it to mean that Congress will never, ever, do any of these things. The words "shall make no" carry weight & force. While the auxiliary verb "shall" denotes future action, its connotation is that of expressing an assertion or a command. This is the function of these words in general, but the example helps to elucidate their gravity.

In a like manner, S. 2212, Sec. 203, states in few words that the FBI Director's term "shall be ten years." There is no equivocation nor qualification in the words chosen. There is nothing suggesting that its authors meant for the term to be "up to" ten years. They say quite simply that the term will be exactly ten years.

We could argue that they could have been more clear about how the Director functions under the umbrella of the Office of the Executive, under what specific conditions the Director can be fired, etc. However, while such debate might be relevant to the esoteric discussions of the future, it has no bearing on this issue.

The notion of FBI independence is not about to whom the FBI reports or under whose office they are organized. At its core, FBI independence is about ensuring that, when the coercive powers of the State are moved en masse against an individual or a group, those coercive powers are brought to bear with absolute regard for Constitutional Rights & the demands of Justice, without being colored by political motivations.

That you fail to grasp this simple concept is unconscionable. In my mind, it borders on negligence. Your apparent ignorance about important, relevant legislation would drive me to distraction were I an Iowan; as an American I'm simply incensed. You made these statements in public, on the record, opening the confirmation hearing for the nominee for the position of Director of the FBI!

I'd like to say that history will judge you unkindly, but I have little faith that many people will pay any attention to this whatsoever. I suggest that contravening such an opinion as yours is of great importance. If allowed to proliferate, your notions could easily lead to a situation in which every incoming president will simply appoint his or her preferred director, a situation the 94th Congress sought to avoid at all costs.

I won't attempt to address further remarks you made disparaging Andrew McCabe, James Comey, & the FBI for carrying the ugly legacy of J. Edgar Hoover, as if the very fact of the ten year term doesn't already address Hoover. To suggest that a politically independent FBI is somehow a threat to liberty is not just foolish, it is irresponsible.

Sincerely

In What Is The Supreme Court Interested?

Posted in Law & Justice, Social & Political with tags , , , , , , , on June 26, 2017 by xaipe

Caveat emptor: I am not now nor have I ever been a lawyer.

The Supreme Court today allowed parts of the Executive Order (EO) that restricts travel from 6 largely Muslim nations to be enforced in part. Essentially, the Court did two things. It acknowledged concerns by opponents & is allowing those with direct ties to United States citizens to continue to enter the country. Additionally, the Court is allowing enforcement of the EO against those who have no ties to United States citizens.

That’s all well & good, but the larger question should be framed differently: what is the Court’s interest in hearing this case?

It seems the case should be moot. The 90 days originally requested by the EO are gone, even from the second EO effective date. Further, it seems the Administration’s claims have little merit, i.e. these EOs speak directly to important national security concerns, but the Administration has not moved forward with the extreme vetting they requested back in January.

POTUS originally claimed (& still does claim) that this EO would:

“[F]or a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United States of certain aliens from the seven identified countries — each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States — would be detrimental to the interests of the United States.”

It seems to any casual observer, however, that this statement by the White House is false. This EO has been mired in the courts for five months at this point, yet the Administration has not rolled out any enhanced or “extreme” vetting procedures.

Either the White House is being disingenuous when it says that this EO is temporary “while existing screening and vetting procedures were under review,” or it completely lacks concern for national security.

One would assume that, this being an incredibly important issue for the Administration, regardless of the position of the various federal courts, the Administration would have began the review of existing screening & vetting procedures immediately. This “extreme vetting” was said to be entirely necessary for the security of our nation & the safety of its inhabitants.

As we all know, however, this Administration has not rolled out any enhanced or extreme vetting procedures whatsoever. They haven’t even indicated that they’ve begun the process!

According to The Weekly Standard, no such policies or procedures are forthcoming, despite repeated claims that the EO is temporary to allow time to implement these extreme vetting policies that are (allegedly) so crucial to our security. The tweets from POTUS himself seem to also suggest that the EO itself is the device that will enhance our security, as he continually says that we need this ban to be removed from the courts so that we can be safe.

The White House has had ample time to implement extreme vetting if that were truly what this is about. Having apparently done absolutely nothing to institute extreme vetting, the argument that the EO is necessary for the security of the county doesn’t hold. 

Regardless, the case before the Court should be a moot issue because the time requested by both the original and the second EO has come & gone (additionally, the 120 days ‘pause’ requested for the refugee program has passed regarding the first EO). The lawyers responding to the government cited this issue in brief. The government responded further by having the White House change the effective date of the EO so that it doesn’t go into effect until the injunction is lifted. In their decision, the Justices noted:

The memorandum further provided that, to the extent necessary, it “should be construed to amend the Executive Order.” Ibid. The Government takes the view that, if any mootness problem existed previously, the President’s memorandum has cured it.

Further, the Court directed both parties to respond to the question of whether or not the case is moot as of June 14, 2017, to be heard during argument in October (this because the second EO is what’s under consideration, with an effective date originally in March).

The concerning issue for me is their interest in hearing this case at all. The case, on its face, seems to have no relevance anymore. However, the Justices will only hear argument about the moot question in October. Further, in a separate “concurrence,” Justice Thomas, joined by Justice Alito & Justice Gorsuch, is of the opinion that the government has a likelihood of succeeding on the merits of the case, i.e. The Court will ultimately strike down all challenges & decide for the government. 

I’m not sure how the government’s case does succeed on the merits. As I argued above, the behavior of the Administration belies any real interest in national security. The Court further notes in the decision that the Administration is free to conduct its review of vetting procedures, “if it has not already done so.” It seems to me the Court is cognizant of the national security issues, but I don’t believe they’ll brook any attempt to play in this area. If the Executive hasn’t competed & implemented their review or tries to expand the timeframe of the EO, I don’t see the Court being pleased.

As an aside, I think there is an argument to be had with the finding regarding refugees. The Court applies the same standard for visa waivers to the refugee program. It seems unlikely that people seeking refugee have bona fide relationships with US citizens, & while no one questions that no alien has a constitutional right to enter this country, one might still suggest that human beings fleeing inhuman treatment at least might have the right to be heard.

Regardless, I’m very interested to see where this goes. If the courts go too far toward Thomas & Gorsuch, we will see a further erosion of public trust in the institutions of democracy. These justices trend toward syssiphean feats of logical acrobatics to turn the law away from the People & towards corporations & moneied interests. At least that’s my opinion. 

The clock starts June 29, 2017. Mark your calendars for September 26, 2017. We’ll see what happens in the 90 days & beyond.