A Most Unfortunate Session of the U.S. Supreme Court I

I am going to try to keep this set of comments mercifully short.  When I started this blog, I did not have the notion that it would turn into a blog on U.S. Constitutional law, and I still do not mean to approach it in those terms.  However, feeding an obvious predilection to dabble in Constitutional law that I’ve held since I started taking courses on the subject as an undergrad and a general sense of revulsion to the partisan direction of Federal adjudication in the past two decades, I’ve rediscovered just how useful it is to talk about principles of governance and state policy in terms of judicial precedence.  Thus, I really cannot avoid making some comments about a week of Supreme Court decisions that, with the partial exception of U.S. v. Windsor (no. 12-307, October Term, 2012), I find abominable, solidifying my impression that history should one day remember the Roberts Court in infamy and measure justices like Ginsburg highly among the Court’s great dissenters like Holmes.  

 

1.  The invalidation of Section 4b of the Voting Rights Act of 1965 in Shelby County, Alabama v. Holder  (no. 12-96, October Term, 2012) will immediately result in the reenactment and reapplication of testing and/or other devices to restrict voting by politically targeted populations (i.e. African-American, Hispanic, and other prevalent non-Republican voting blocs) in all states initially subjected to “preclearance” requirements of section 5.

Acknowledging my prioritization for the democratic process as an absolute procedural prerequisite to social justice in all areas of life (i.e. not only in government but also in households, in workplaces, in churches…etc.), I have a real problem when unelected justices start tampering with the democratic process to disenfranchise citizens with a stake in the gradual, peaceful transformation of American political life in order to secure the success of a broader reactionary partisan agenda threatened by demographic shifts in the American population.  In no uncertain terms, I consider the implications of this decision huge and, in the event that it produces at least some of its intended effects, worthy of a militant, revolutionary reaction! 

            To be certain, the Voting Rights Act of 1965 did not radically transform political outcomes in the Southern states and in the various other regions where racial and ethnic minorities were effectively restricted from actively participating in the democratic process.  In 1965, the South was in the midst of a political transition, but it was a strictly nominal one.  The political elites that dominated Southern politics transitioned from practically unanimous membership within the national Democratic Party to nearly unanimous membership in the national Republican Party.  Otherwise the partisan position of the South remained essentially unchanged.  Initially Southern Democrats/Dixiecrats and, thenceforth, Southern Republicans favored strictly limited federal involvement in the internal politics of Southern states, economic policies designed to take maximum advantage of reduced labor costs through restrictions on labor organizing and strictly minimal social welfare expenditures, lower taxation, preferences for pork-barrel spending in Congress on military bases and other federal expenditures likely to confer economic benefits on localized populations without extraneous requirements in social policy reengineering, and maintenance of Southern electoral influence on the federal level.  They resented the preclearance procedures (i.e. federal approval of changes in voting procedures) of the Voting Rights Act as a stigma in the same way that their ancestors had hated and despised the Reconstruction, carpetbagger Republicans, and freed Negro politicians.  On the other hand, they endured the embarrassment of their localities from media coverage of the Civil Rights movement and their inability to put their Negroes back into their place without the watchful and scornful eyes of the rest of the world hanging over them, and, ever since, they’ve tried really hard to convince the rest of the world that they’ve changed their repressive, racialist, anti-democratic, plutocratic ways. 

            However, since they’ve lost the ability, under the Voting Rights Act (and its larger authority under the Fifteenth Amendment), to legally exclude the populations that they don’t want to see voting from the polls, they’ve pursued a mixed set of strategies intended to enable them to hold their ground against shifting demographics.  As the South has increasingly become a subject in the voracious (but, by no means, universal!) colonization of space by economic globalization, its Republican Party elites have sought to outsource the business of excluding unfriendly voices from the voter rolls to third parties, dispatching mass mailings in minority neighborhoods to inform certain voters that they should go to the voting booths the Wednesday after the general election when everyone else votes (see Wang, “Voter Intimidation in 2012. And How to Stop It Next Time,” on Dēmos, at: http://www.demos.org/blog/voter-intimidation-2012-and-how-stop-it-next-time).  The broader effort of political elites, particularly in the South but also in other regions cited under Section 4B, to invalidate the Voting Rights Act needs to be assessed against both the economically induced effects of globalization on demography (and, thus, the erosion of a politically conservative voting bloc in the “Solid South”) and the aggressive privatization of voter deception and outright voter intimidation. 

To inadequately summarize a vast history in the efforts of a conservative political elite to prevent its own displacement through the relentless workings of the democratic process by endlessly changing the rules of the game to deprive its opponents of rightly gained majority rule, the ruling in the Shelby County case is all about stripping away federal oversight of voting in the South (and, of course, in other states like Arizona and in county or municipal jurisdictions with rapidly growing minority populations that threaten the rule of entrenched political elites), so that new restrictions can legally be placed in the way of voting, however likely they will exclude politically targeted groups.  The majority decision by Chief Justice Roberts does not invalidate the Section 5 practice of preclearance by the federal government of voting practices.  Rather, it ignores evidence of nearly a half-century of developments in new efforts to prevent minorities from voting in order to trumpet the great official, legal progress that has been made in registering and functionally integrating previously restricted voter populations.  However, in a period where the entrenched political power of white, conservative, Republican elites is being threatened in rapidly globalizing states like North Carolina and Georgia by the immigration of populations from more progressive regions and from outside the U.S., the Court has opened a window to enable the Republican Party to maintain both key Senate seats and to maintain control over electoral college votes in successive elections by changing electoral rules without the interference of the federal government. 

Issues have been raised about this decision regarding the Court’s relegation of the duty to reauthorize Section 5 preclearance requirements, based on contemporary statistical data on voter registration and participation, to Congress, in a period where Congress couldn’t legislate its way out of a paper bag, let alone reauthorize voting rights responsibilities to individual states and regions under the Voting Rights Act.  Criticisms of the Court are quite justified in this manner.  To some extent, they realize the larger point that the Court’s conservative majority, and Chief Justice Roberts in particular, is proceeding from a defined partisan agenda, intended to undermine the capacity of the federal government to ensure uniform access to voting rights.  In these terms, Roberts’ majority opinion constitutes a salvo against the principle of majority rule at a time in which the majority of the American population would, likely, guarantee a generation of Democratic presidential administrations, at least as many Democratic Senate majorities, and an eventual liberal majority within the Supreme Court and most of the federal circuit courts.  The Constitution has many obvious faults, but it is not a weapon for to be employed for the purpose of selectively incorporating and disenfranchising citizens based exclusively on how they might be inclined to vote.  Succinctly, I find this decision a disgusting abuse of judicial review, the most foul misuse of this session, whose effects will hopefully be overthrown peaceably by the march of demographic transformation and the irreversible and overpowering march of economic globalization in the U.S., to render, eventually, this decision an anachronistic and justifiably ignored piece of reactionary political precedence, like, say, the Dred Scott decision.

2.  The decision in Fisher v. University of Texas at Austin (no. 11-345, October Term, 2012) manifests an indeterminate legacy in relation to the broader development of affirmative action and ultimately raises questions on the entire project of the Civil Rights-era to elevate the status of previously undermined minority groups through education. 

At the outset, the point must be made that education is not the golden goose that liberal politicians and policy makers want to make of it in the age of economic globalization.  On the contrary, it is a single piece in a broader field of qualifications for enhanced income potential as industrial age employment opportunities disintegrate in the U.S.  Any college graduate in the U.S. today will tell you that a degree is not enough to guarantee that the student loans will get paid off.  For my part, I can render no negative judgment against affirmative action, understood in reference to hiring or admissions preferences tailored toward racial and ethnic minorities.  Absent an extended hiring process for my first job out of college, racial preferences have never given me a problem.  For that matter, I do not extraneously object to racial preferences if they serve the broader social objective of ensuring that minorities with adequate qualifications are represented in targeted professions.  That is the whole point of affirmative action, and, as an economist with experience teaching labor economics at the university level, I do not disagree with the logic that categorical openness in hiring processes relative to race, sex, and every other criterion will produce the best possible work force.  The point of affirmative action was not to entrench quotas into either education or labor, but to expand the fields of education and hiring to include previously excluded labor pools and take advantage of entirely new fields of talented labor, eager to learn and participate the profit-making efforts of firms. 

            With these considerations in mind, the logic apparent in the Fisher decision escapes me.  I understand that the notion of establishing quotas for particular racial groupings (in accordance with the understanding established in Regents of the University of California v. Bakke (438 U.S. 265)) does not constitute a favorable (much less constitution!) methodology for racially oriented hiring preferences.  On the other hand, I realize the basic point that, if racial admissions and hiring preferences were not enforced, then we would end up with lily-white student bodies and labor forces that would tangibly undermine the talent base against which firms engaged in global competition could draw.  Affirmative action, regardless of its well-reasoned criticisms, has made our national economy and our regional labor force pools better off.  As such, I cannot comprehend the logic apparent in questioning the University of Texas’ application of racial identification as a parameter in establishing a diverse student body, per Grutter v. Bollinger (539 U.S. 306 (2003)). 

          Clearly, the conservative majority sensed the opportunity to make inroads into the further invalidation of affirmative action.  However, in a much broader sense following political trends in Washington, the current deliberations in the Senate over immigration reform, if they were actually likely to produce an immigration reform platform for the Obama administration to enact, would expand the base of talent for American university programs, provided we do not prematurely close the door on the project of racial and ethnic diversity engrained in affirmative action policies.  The justices in the majority, by identifying with a more circumscribed reading on the effects of affirmative action as a means of compensatory justice for previously discriminated groupings, are, in this regard, behind the tide of a history inscribed by globalization.  Rather than evaluate the role of affirmative action in relation to the past sins of racial discrimination, we need to examine it in relation to contemporary and future efforts to maintain the quality of student bodies in American higher educational institutions and that of the larger American labor force through the maintenance of diversity.

            In handing this case back to the Fifth Circuit with a preference for non-racial qualifications, the Roberts Court inflicted as little damage as possible on institutions that have, over time, vastly benefited the U.S. economy by preempting the continuous construction of a racial hierarchy in higher educational processes.  That said, the vitality of affirmative action remains questionable in the aftermath of the decision.  We can certainly hold out hope for what comes in the future.  At this point, I consider this decision an ambiguous blessing where I would have rather seen the Court deny any hearing of the case.         

                   

On the NSA Surveillance Scandal and the Peculiar Mr. Edward Snowden I

I started writing this rant in response to the ranting (again, I don't mean this in a bad way!) of a liberal theological friend on my morning bus ride to work concerning the encroachment of government into the lives of private American citizens, the apparent ascension of “big brother,” and the larger irrationality of the “War on Terror” that has inspired the current round of NSA technological innovations.  I might further add that I mean to respond to the self-confident opposition of the NSA’s actions by the American Civil Liberties Union, an organization that I actively support financially and, yet, in this circumstance, find myself in substantial disagreement.  Like the other two major issues in which I have generated rants here (gun control and gay marriage), I think that the issues at stake in the surveillance of communications media to produce civil intelligence data in defense against lethal actions by domestic or foreign agents defy any simple explanation or means of resolution in relation to demands for privacy.  Rather, as with my previous rants, I plan to address this issue in a series of conclusions intended to arrive at a larger conception of the problems involved here.

1.  The NSA's collection of telephonic metadata does not violate the protections accorded to U.S. citizens through the Foreign Intelligence Surveillance Act of 1978 or its amendments and does not constitute an illegal search and seizure under the terms of the Fourth Amendment.

The collection of telephonic metadata (i.e. records held by telephone service providers on calls made and received by users, to the exclusion of actual surveillance of conversations) by federal authorities, under the authority of the Foreign Intelligence Surveillance Act of 1978 (FISA) and its subsequent amendments raises a number of valid constitutional concerns, specifically concerning the applicability of Fourth Amendment protections against illegal searches and seizures (i.e. accumulation of privately held property or personal information by law enforcement authorities for the purpose of obtaining a criminal conviction based on such evidence).  At issue here are the purposes served by the collection of metadata (in relation to the specific demands of accumulating intelligence on the actions of foreign agents, including American citizens actively working to achieve the military or intelligence collection goals of foreign governments or international non-governmental organizations like Al Qaeda) and the possible uses of accumulated metadata for purposes not authorized by FISA. 

            To begin, we need to be perfectly clear about what it is that federal authorities are engaged in collecting.  The National Security Agency (NSA) is collecting metadata, not engaging in electronic surveillance/eavesdropping on telephone conversations.  The latter is authorized by FISA, without prior issuance of a warrant from the review court established by FISA, under circumstances where there is a reasonable presumption that communications involve at least one party located outside of the United States.  Moreover, procedures exist within FISA for issuance of warrants by the FISA court to conduct direct electronic surveillance of foreign governments or agents of foreign governments. 

Metadata is different in nature than direct electronic surveillance.  Metadata includes records of telephone numbers from which a call has been made or received and the length of phone conversations, and it may also include the geographical location of each device (i.e. the location of a stationary land-line phone or the GPS coordinates of a mobile device).  The presumptive use of metadata by NSA consists of sorting through phone records to determine whether patterns exist for particular telephone accounts making or receiving calls from outside of the U.S.  In effect, NSA is attempting to uncover the planning of actions by organizations like Al Qaeda, in the U.S. or elsewhere in the world, by observing patterns of telephone communications by individuals in the U.S., including especially communications with individuals in other regions around the world. 

The key problem here concerns the scale of NSA’s metadata collection operations.  If I am to understand correctly, NSA is attempting to utilize computer software to facilitate the analysis of metadata collected, in effect, from every individual utilizing a telephone at any time anywhere in the U.S.!!  That is to say, the domestic call that I make to my mom tonight to remind her to double lock her doors because there has been a rash of break-ins in her neighborhood will be collected by NSA.  So will the international call that I make to a friend and former fellow grad student in Istanbul to find out how the recent anti-government protests are proceeding in her neighborhood.  For that matter, any call initiated from anywhere in the world that utilizes telephone network infrastructures based in the U.S., either to reach a party in the U.S. or simply as an intermediary, will potentially be collected by NSA. 

Such operations not only demand a massive investment in computer analytical equipment to crunch data generated from tens of millions of phone accounts each day, but also demands a significant investment in information technology technicians to develop screening protocols and in data analysis by skilled analysts seeking to identify suspicious patterns in order to generate a compelling case before the FISA court that probable cause exists to issue a warrant for electronic surveillance by NSA.  As a pure fiscal matter, this investment is nothing to sneeze at and remains a heavily guarded secret.  The Obama administration has apparently requested $48.2 billion for the National Intelligence Program, including certain intelligence collection operations by NSA, CIA, and other civilian intelligence agencies for fiscal year 2014 (see Cook, “Who Manages the NSA’s Super-Secret Budget?” in NationalJournal (June 23, 2013), at: http://www.nationaljournal.com/magazine/who-manages-the-nsa-s-super-secret-budget-20130620).  The operating budget, including skilled manpower and maintenance of supercomputers, for the NSA’s new facility in Bluffdale, Utah (see Carroll, “Welcome to Utah, the NSA’s desert home for eavesdropping on America,” in The Guardian (June 14, 2013), at: http://www.guardian.co.uk/world/2013/jun/14/nsa-utah-data-facility) must be included within this larger sum.  In the era of fiscal sequestration, any expenditure of this scale deserves to be called into question if only to ensure that the Obama administration has made its case that the operations of NSA, in the collection of metadata and other communications sources, are absolutely indispensable to national security and deserve to be accorded priority status over and above expenditures on other departments like Education, Health and Human Services, etc, as supplemental budgetary allocations are doled out in Congressional compromises to prevent government shut-downs. 

For my part, I am relatively satisfied that the Obama administration can justify these investments to the satisfaction of most members of the 113^th Congress and, for that matter, as someone who has been trained at one point to serve in the capacity of an intelligence analyst (in military intelligence), I am also perfectly satisfied that metadata serves a legitimate, useful purpose in achieving the goals of the NSA to hinder the operations of foreign governments and international organizations like Al Qaeda in the U.S. and abroad.  Questions remain, however, concerning the constitutionality of these operations relative to the Fourth Amendment. 

The governing precedence regarding the limited question of unwarranted electronic surveillance against U.S. citizens is Katz v. United States (389 U.S. 347 (1967)), in which the Supreme Court held that unwarranted electronic surveillance of U.S. citizens amounted to an illegal search and seizure under the terms of the Fourth Amendment.  This case involved the use of electronic surveillance devices (i.e. “bugs”) on a public phone booth to accumulate information for the federal criminal prosecution of a U.S. citizen on U.S. soil.  The precedence does not apply to electronic surveillance against non-U.S. citizens, suspected as foreign agents in intelligence gathering – the procedures for electronic surveillance in these circumstances are clearly spelled out by FISA.  Moreover, protections of the rights of U.S. citizens are spelled out in FISA to deal with circumstances where NSA needs to engage in electronic surveillance of a U.S. citizen on U.S. soil in relation to intelligence gathering operations by a foreign government. 

None of this really relates to the unwarranted collection of metadata.  With metadata, no one is actually listening to conversations.  On the other hand, patterns can be established by metadata that can convey a larger account on the behavior of individuals, including not only involvement with foreign intelligence and international terrorist organization but also criminal activity unrelated to the national security objectives of NSA.  The establishment of patterns in international communications is precisely the point behind metadata collection by NSA.  The critically useful character of metadata in establishing probable cause for the issuance of warrants in so many other circumstances that have no tangible relationship to FISA by federal authorities, however, makes these operations problematic – that is to say, if NSA is collecting metadata, what protections exist to ensure that it does not share its raw data with other federal agencies engaged in law enforcement (e.g. FBI, DEA), enabling the latter to obtain unwarranted evidence of criminal activity without establishing probable cause in order to obtain criminal convictions?  A blogger on legal issues in cell phone communications, J.A. Engel, makes this point quite succinctly (see Engel, “NSA Collection of Phone Records May Be Unconstitutional. Violates Fourth and First Amendment,” on Stockycat Blog (June 6, 2013), at: http://www.stockycat.com/2013/06/06/nsa-collection-of-phone-records-is-unconstitutional-violates-fourth-and-first-amendment/; also, Engel, “Courts Reexamine the Application of Goldfinger-Era Electronic Tracking Cases to Law Enforcement Use of GPS Tracking Devices,” in Richmond Journal of Law and Public Interest (Forthcoming)(Nov. 13, 2010 draft), at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1708470).  Engel cites the precedence of United States v. Warshak (631 F.3d 266 (6^th Cir. 2010)) in which the Sixth Circuit Court of Appeals ruled that there is a reasonable expectation of privacy (per the standard set by Justice Harlan’s concurring opinion in Katz) in e-mail contents stored by a third party Internet Service Provider (ISP), necessitating a court finding of probable cause and issuance of a warrant for law enforcement authorities to access the contents of e-mails from an ISP.  The legal analogy here applies to metadata possessed by third-party telephone service providers.  Approaching from the standard set in Katz, if there is a subjective expectation of privacy in the third-party maintenance of metadata demonstrated by telephonic users and society accepts the reasonable nature of such claims to privacy, then the government should be compelled to seek a warrant under a finding of probable cause that a criminal act has been or will be committed in order to pursue the collection of metadata.

Not being a constitutional attorney of any kind, I can still see the threads of Engel’s argument here, but there might be some grounding to distance metadata, relative to the Fourth Amendment, from the contents of e-mail communications or even GPS-tracking data (at least if telephonic metadata does not include geo-locational information on the devices).  If the metadata simply includes phone numbers, not names or other identifying information on account holders, then patterns might emerge, but law enforcement officials would need to undertake further investigations and, perhaps, establish probable cause to the satisfaction of a court, to determine who might be associated with a particular suspect pattern.  The pathway from a determination that a pattern exists to the issuance of a criminal indictment is, thus, necessarily piecewise and must involve a series of findings of probable cause, at least where metadata collection have suggested that a domestic criminal offense unrelated to FISA might have been uncovered by the use of telephonic records. 

On the other hand, a simpler remedy might exist (and, technically speaking, already does exist) for the quandary that is evident here.  Simply stated, NSA metadata collections function exclusively for the use of NSA in enforcement of FISA.  In circumstances where there is no indication that a particular pattern might be demonstrative of the activities of a foreign government, agents of a foreign government, or agents of an international non-governmental organization to the detriment of national security, NSA should be directed to disregard such patterns.  Agencies outside of NSA do not possess a need to know metadata revealed patterns that do not explicitly implicate the terms of FISA and its amendments.  If a durable legal firewall exists between NSA and federal law enforcement agencies, selectively breached under circumstances where other agencies are required to assist NSA in its enforcement duties relative to FISA, then use of NSA metadata to pursue agendas unrelated to FISA should not be expected to occur.

       Concluding this section, I simply do not know whether NSA collection of metadata constitutes a violation of Fourth Amendment protections against illegal searches and seizures.  Some leeway seems to exist for NSA to claim that collection of telephonic metadata on U.S. phone accounts is different from direct, unwarranted electronic surveillance of U.S. citizens, prohibited under the Katz opinion.  Moreover, through its actions, NSA does not appear to contravene, in any way, the information “minimization” protections accorded to U.S. citizens under the terms of FISA and its amendments.  In these terms, NSA does not appear to have done anything wrong constitutionally in developing its program to collect and analyze metadata, although I am sure that, at some point, the federal judiciary will stick its nose in to provide its two cents on the issue. 

       Moreover, personally, not being either an agent of a foreign government or a subscriber to the ideologies of any international non-governmental organization committed to waging acts of terror against the U.S., I tend to dismiss the idea that I have much to worry about in using my cell phone to let my boss know that I missed the bus and am, therefore, going to be a half hour late for work – I feel confident that NSA analysts are not going to find anything that they would ever conclude as suspicious from me!  The potential benefits from letting NSA collect and analyze metadata that could reveal valid patterns of communication from suspicious sources would seem, at least from existing evidence, to outweigh a minor breach of personal privacy.