Civil vs. Constitutional Law; A Lecture To the U.S. Court of Appeals, 6th Circut

The U.S. Appeals Court of the 6th Circut in Cincinnati threw out a legal challenge filed by the ACLU on behalf several groups of lawyers, journalists, and scholars to the National Security Agency's (NSA) warrentless wiretapping program. The ruling was reportedly based on a split decision (2-1) with the two judges dismissing the suit reported in the article as "republican" appointees, and the one decenter a "democratic" appointee. The suit wasn't thrown out on merit, it was dismissed on technicalities. Those technicalities were chiefly based on the the fact that the plaintiff's could not show the had been the subject of the warrentless wiretaps and data mining the NSA and President Bush had public ally acknowledged doing. The other issue was the plaintiff's could not show they had suffered any harm from the NSA's action and that perceived harm could not be considered. Cited repeatedly in the courts ruling was several ornamental cases which sought civil injuctive relief, and a case from California involving a police choke hold in which the plaintiff sought protective relief from the possibility he might be subjected to such a hold. To view the court's full decision click here.

The problem for the plaintiff's here was the case was dismissed because they could not show their calls had been monitored. Why you ask? Because the NSA in it's defense invoked the State's Secret Act, which held that the information as to whether or not the defendants was classified as a matter of national security. Therefore the Court ruled based on several ornamental cases the plaintiff's could not show they had "standing" before, the court (in other words they couldn't show their calls had been monitored), nor could they demonstrate actual harm. This raises the question, "who is minding the store"? Another question one might ask is did those two judges graduate from Regent University's Law School as well like many recent Justice Department officials? Then the big question is did those judges read the Constitution, specifically Amendments 1 and 4 which they site in their opinion. For the purposes of brevity here I will only focus on the Fourth Amendment which I quote below:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (emphasis added)

Ok the point with a side story, kinda my bona fides. I used to write in my former life as a Prison Administrator both Departmental and Institutional policy. I was taught by administrators and attorneys what I call "legalise" 101. Basically should I write something and gave those charged with caring it out the option of "will" or "shall", though they might grammatically mean the same thing legally there was a BIG difference. If I wrote "All persons entering the prision will blow their nose" it left that person, and those charged with enforcing that policy "wiggle room". Say it was a hot dry day and no one felt they could or should blow their noses. Had I wrote "all persons enter the prison shall blow their noses", well there was no "wiggle room", and those charged with enforcing the policy had to make everyone do it, as well as all those entering the prison.

Let's go back to the Fourth Amendment, please show me where the word "will" is written? Now tell me where and how many times the word "shall" is written? Sorry Courts, Cheney, Bush and Congress, there ain't no "wiggle room" here without a constitutional convention to ratify this amendment. Then again, for the Court to allow a case that clearly violates our Constitution based on the precedent set fourth in an ornamental case where cause and effect can be justified is irresponsible, if not reckless.

Let me help out those whom occupy a judicial seat and a legislative seat who argue interruptions of the meaning of the Constitution by it's chief author, Thomas Jefferson, who wrote:

""Where a constitution, like ours, wears a mixed aspect of monarchy and republicanism, its citizens will naturally divide into two classes of sentiment, according as their tone of body or mind, their habits, connections and callings, induce them to wish to strengthen either the monarchical or the republican features of the constitution. Some will consider it as an elective monarchy, which had better be made hereditary, and therefore endeavor to lead towards that all the forms and principles of its administration. Others will view it as an energetic republic, turning in all its points on the pivot of free and frequent elections." --Thomas Jefferson to James Sullivan, 1797. ME 9:377

"The Constitution to which we are all attached was meant to be republican, and we believe to be republican according to every candid interpretation. Yet we have seen it so interpreted and administered, as to be truly what the French have called, a monarchie masque." --Thomas Jefferson to Robert R. Livingston, 1800. ME 10:177

Jefferson, in guidance to the Courts went on to add:

"Whenever the words of a law will bear two meanings, one of which will give effect to the law, and the other will defeat it, the former must be supposed to have been intended by the Legislature, because they could not intend that meaning, which would defeat their intention, in passing that law; and in a statute, as in a will, the intention of the party is to be sought after." --Thomas Jefferson to Albert Gallatin, 1808. ME 12:110

In plain English, to the courts, without the "legalize" used by your profession to obscure meaning and provoke endless debate, thereby ensuring job security, the NSA's actions were illegal. For the court to tell the plaintiff's "they have no standing before the court" because the government denied them access to records which to the court would have, in the court's own words "granted them standing" to pursue the case violates the entire system of law this country was founded on. The court's decision is in my humble opinion a crime of malfeasance. By the court's own opinion the NSA and the government admitted they wee doing what the plaintiff's alleged, and was claimed to be in violation of the Constitution.

The original article from which this piece was drawn pointed out the political party differences between the majority decision, and minority decision. Conservatives used to be the the one crying about the "Big Brother" tactics of government. This should not be a political party debate. It is one of a few things that the two parties agree on. We've already seen the government cannot be trusted to police themselves as examplified in the FBI's abuse of National Security Letters. Both Congress and the Courts have a duty to oversee the Executive Branch. The arguments that lawyers make concerning this instance and that instance as being unique and something our Founders couldn't have seen is absurd. They lived through the period when the Monarchy and the "privileged" held sway over the rights and liberties of everyday people. Just as those Jewish survivors of Hitler's regime, and Russian immigrants from Stalin's time could tell you of the exceptions made to ensure "state security". I would be willing to wager those "exceptions" are the same one's we hear Bush and Cheney uttering today. Funny how history repeats itself. You say it won't happen here? I would be willing to wager that is what many Germans said in the 1930's, along with their Jewish brethren who were being herded off in cattle cars to places like Buchenwald and Auschwitz.

Where constitutional questions are raised before the Court then we all have standing. For this is the law of the land and all of us are governed, and expected to abide by it. At that time "discovery" cannot be exempted by National Security, though it can be protected. The Court in this case shirked it's duty in failing to consider the complaint before it. Those groups had standing because they were citizens, and that is how the Constitution starts; "We he People..." I suggest those judges go back and read the document they are ruling on.