You’re a Contractor? Political Contributions Not Allowed

By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY

Law professor Wendy Wagner’s scholarship at the University of Texas captured the attention of the U.S. government, which contracted with her to analyze how federal agencies can better use science in decision making. Unfortunately for Ms. Wagner, her federal contract means that she cannot contribute to any political party, committee or candidate for federal office. So in 2011 she went to court, asserting that the 74-year-old ban on contractor contributions is unconstitutional.

On Sept. 30, the full U.S. Court of Appeals for the D.C. Circuit heard arguments in Wagner v. FEC. The case provides a much-needed opportunity for the courts to demand strong justification for laws curtailing political speech.

The question in Ms. Wagner’s case is whether the ban on contractor contributions furthers the government’s interest in preventing quid-pro-quo corruption—meaning an exchange of dollars for political favors. This is the only interest considered sufficient to justify limits on political contributions, consistent with the First Amendment, under the Supreme Court’s 2010 decision in Citizens United v. FEC, and the D.C. Circuit’s own precedent that year in SpeechNow.org v. FEC.

The government contends that banning contractor contributions prevents quid-pro-quo corruption because if contractors could make donations, candidates might return the favor by helping secure a federal contract. The ban’s genesis lies in the Works Progress Administration scandal of the late 1930s, wherein WPA employees and contractors were strong-armed into making contributions to Democrats as a condition of keeping their jobs or contracts. The WPA’s blatant solicitation shocked the nation, leading to the 1939 Hatch Act, which included broad limits on political activity by federal employees. These included a ban on employee contributions to candidates and a ban on contributions by contractors.

In 1993 the Hatch Act was significantly amended, permitting federal employees to work on political campaigns while off-duty and contribute to candidates. Recipients of federal largess, such as grants, scholarships and benefits like Social Security or disability, also can make political contributions—even though, arguably, their contributions may be made with the goal of securing those benefits. Federal contractors like Wendy Wagner, by contrast, remain unable to make any contributions.

The outcome in Wagner will likely hinge on how closely the D.C. Circuit scrutinizes the connection between the law’s stated goal—preventing quid-pro-quo corruption—and its means of achieving that goal—banning contractor contributions. The fit between the law’s means and ends is loose at best.

For example, the law is oddly narrow. It prohibits contributions by a contracting entity, e.g., a corporation, but it allows the corporation’s employees and officers to make contributions—while sole proprietors like Ms. Wagner cannot. If Ms. Wagner wants to contribute, she can form a corporation, call herself the president, and sign her contract as president of Wagner Inc. If there truly is a risk of corruption, why permit such formalistic evasion of the law and give corporations an unfair advantage over sole proprietors?

Similarly, the law doesn’t ban contractors from fundraising or bundling—activities far more beneficial to political candidates—and it doesn’t ban contributions made before securing a federal contract. Any corruption risk is surely highest at the stage before awards are made, when those vying for contracts may hope that large contributions will win them a contract award.

The law also is oddly broad. It bans contributions to any political party, PAC or federal candidate, even though it is agency bureaucrats—not politicians, parties or PACs—who award contracts. Similarly, the law bans contributions to independent-expenditure groups—so-called Super PACs—such as Planned Parenthood Votes, or the Tea Party Patriots Citizens Fund. Yet none of these Super PACs can influence the awarding of federal contracts. A law that bans contractor contributions to individuals and entities that have no rational connection to the award decision is incapable, by definition, of reducing quid-pro-quo corruption—since the quid (contribution) cannot produce the quo (contract award).

If the D.C. Circuit concludes that the federal contractor ban violates the First Amendment, it will be because the courts now understand that prior restraints on political speech cannot rest on the government’s mere claim that such bans are needed to prevent corruption. When laws restrict citizens’ most fundamental constitutional rights, such as the right to political speech, courts have a duty to put the government to the test—to ensure not only that the laws advance important interests like preventing corruption, but that they are tightly calibrated to further those interests.

In Wagner, the D.C. Circuit will have an opportunity to show that judges take their duty to protect political speech very seriously.

Mr. Rivkin, a partner at the firm Baker Hostetler, served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Ms. Foley is a constitutional law professor at Florida International University College of Law and the author of “Defending Citizens United,” forthcoming from Prager in 2015.

Source: http://online.wsj.com/articles/david-rivkin-and-elizabeth-price-foley-youre-a-contractor-political-contributions-not-allowed-1413932117

Criminalizing Political Speech in Wisconsin

By David B. Rivkin Jr. and Andrew Grossman

The criminalization of politics is bad enough—just ask Texas Gov. Rick Perry—but a new turn to target citizens as well threatens to permanently warp our political discourse. Like it or not, federal courts will have to intervene to uphold Americans’ First Amendment rights against win-at-any-cost politics.

Wisconsin is ground zero of this phenomenon. A partisan elected district attorney, John Chisholm, reportedly goaded on by his union-steward wife, Colleen, decided to take aim at Republican Gov. Scott Walker after his 2011 “Budget Repair Bill” cut back on public-sector collective bargaining within the state. But Mr. Chisholm didn’t stop there: After an aggressive criminal investigation failed to knock Mr. Walker out of office, the district attorney set his sights on the governor’s philosophical allies, an assortment of conservative citizen groups that supported Walker’s reforms.

The claim was that these groups illegally “coordinated” their speech on the issues with Gov. Walker’s campaign, thereby circumventing campaign-finance regulations. The evidence? Intercepted emails and phone records showing that some of the groups communicated with Gov. Walker’s campaign, mostly on policy issues. That wasn’t enough to bring charges, but it did allow Mr. Chisholm to launch an aggressive criminal investigation targeting Gov. Walker’s supporters, complete with home raids and everything-but-the-kitchen sink subpoenas.

These efforts had the intended effect: Funding for conservative policy advocacy dried up and Gov. Walker’s supporters were forced to redirect their energies from political activism to courtroom litigation.

This is not the first time the political left has used criminal law as a campaign device. It started with the prosecution of former Texas Republican Rep. Tom DeLay —who was finally exonerated in 2013 of trumped-up campaign-finance charges nine years after being charged. Another tactic has been to fund groups like the American Democracy Legal Fund, which has deluged Republican lawmakers with ethics complaints.

Yet the dubious innovation in Wisconsin was to target citizens, banking on the fact that they won’t or can’t fight back. The assumption held true for many groups. But not all of them.

The Wisconsin Club for Growth and its director, Eric O’Keefe, not only challenged the subpoenas directed at the Club, but also brought suit in federal court this year to vindicate their federal constitutional rights. (We represent the Club and Mr. O’Keefe in that action.) The investigation, they argued, was viewpoint-based retaliation for their advocacy in support of Gov. Walker’s agenda, in blatant violation of their First Amendment rights. The district court agreed and in May blocked the investigation, reasoning that the District Attorney Chisholm’s theory of “coordination” was unconstitutional and could only have been adopted in bad faith.

In September, however, a panel of the Seventh Circuit Court of Appeals reversed that decision, on the view that federal courts have no business interfering in state criminal investigations. While visibly distressed by the John Doe investigation, the three-judge panel assumed that the Club and Mr. O’Keefe could simply ask the state court overseeing the investigation for relief.

Easier said then done. While there is a state court overseeing one piece of Mr. Chisholm’s wide-ranging investigation, that court doesn’t exercise control over other conduct by Mr. Chisholm and his associates and doesn’t have the power to consider a First Amendment retaliation claim. And quashing a subpoena—the relief available in that state court—is no substitute for what the Constitution actually guarantees: freedom of speech without fear of government retaliation based on your viewpoint. In effect, the Seventh Circuit’s decision leaves John Doe’s victims out in the cold, so far as their First Amendment rights are concerned.

Unfortunately, Wisconsin may be an early indication of what’s to come. Just as the Delay prosecution touched off a dozen other politically motived cases, the Wisconsin John Doe investigation provides a template for similar mischief across the nation. It suggests that anyone can lob accusations of illegal “coordination” between an officeholder and his allies—and all a partisan prosecutor needs is evidence of a single private meeting or email to justify an intrusive and aggressive investigation. It’s that easy to tie your ideological opponents in knots for months or years on end. After Wisconsin, the temptation to use the law as a political weapon may prove irresistible.

The casualty is citizens’ ability to speak out on matters of public importance and interact with their elected representatives, rights which are at the very core of the First Amendment’s protections. Federal courts exist to enforce federal rights, particularly when they are under siege by state officials. If the federal judges shirk that duty, it will only embolden those bent on misusing criminal law to silence their opponents.

Messrs. Rivkin and Grossman are attorneys at the firm Baker Hostetler LLP. Mr. Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.

Source: http://online.wsj.com/articles/david-b-rivkin-and-andrew-grossman-criminalizing-political-speech-in-wisconsin-1412979776

Russia’s actions in Ukraine clearly violate the rules of war

By David B. Rivkin Jr. and Lee A. Casey

While Russia’s aggression against Ukraine tramples the United Nations charter, Moscow gets a free ride on its other transgressions of international law. Few have focused, for instance, on how Russia’s military operations in Ukraine violate the 1949 Geneva Conventions. The failure to challenge this misconduct is profoundly wrong and damages the integrity of this whole body of law.

The Geneva Conventions are a great civilizational accomplishment, tempering how wars are waged. For years, they have been transgressed by non-state actors who fight out of uniform, target civilians, take hostages and engage in torture.  But these critical legal norms are far more threatened when such conduct is embraced (in action if not word) by a sovereign state and a party to the Conventions.

The fact that Russian troops operate in Ukraine in unmarked uniforms, or pretend to be civilians, is a significant Geneva violation. States can and do use commandos who operate with stealth and concealment, as the United States did in both Afghanistan and Iraq. There is a fundamental difference, however, between using special forces in an announced armed conflict and doing so while denying that one’s military is engaged at all, as Russia has done.

Moscow is trying to avoid political and legal responsibility for its actions — and Ukraine is not the only place it is prepared to act. Latvian analyst Janis Berzins has analyzed internal Russian military documents describing Moscow’s “new way of waging war” that includes undeclared wars, undercover destabilization, attacks on civilians to create false humanitarian crisis and psy-op operations. Moscow believes this style of waging war could be particularly effective against neighboring countries with large Russian-speaking populations.

Russia’s denials ring hollow. Moscow has inserted intelligence operatives, Spetsnaz personnel and other elite troops into the region, and some of these individuals have been apprehended by Ukrainian forces. Evidence of Russia’s involvement includes the Russian body armor these forces wear and the specialized and expensive Russian weapons they carry, such as AK-74 automatic rifles and Dragunov sniper rifles.

During the most recent fighting around Slovyansk, Russia’s stronghold in eastern Ukraine, hundreds of Russian personnel and irregulars deployed mortars, heavy machine guns and antitank weapons. The National Security Agency, NATO intelligence services and the Ukrainian government have also intercepted communications indicating that senior officers from Russia’s Southern Military District control Moscow’s operations in eastern Ukraine, as Secretary of State John F. Kerry discussed in meetings last week.

Moscow-led forces have also engaged in an intimidation campaign of assassination and torture against Ukrainian civilians, among the most serious Geneva offenses. Examples include Vladimir Rybak, a local government official in the Donetsk region and a strong supporter of the Ukrainian government, who was kidnapped, tortured and killed. His body was thrown into a river on the outskirts of Slovyansk.

In another palpable violation of the Geneva Conventions, which require military operations to be waged in ways designed to minimize collateral damage to noncombatants, Russian forces have staged assaults on police stations and government buildings in ways designed to maximize civilian casualties. This was done to discredit the Ukrainian government and provide a “humanitarian” justification for further Russian intervention.

Russian forces in eastern Ukraine have seized hostages, including Organization for Security and Co-operation in Europe observers. They have also violated the Geneva Conventions and the customary laws of war byrecruiting Ukrainian civilians and police personnel. In two regions of eastern Ukraine, Luhansk and Donetsk, about 50 percent of local police personnel have reportedly switched sides. The Ukrainian Security Service says Russian banks have been transferring funds to make daily payments to pro-Russian Ukrainians. .

While the responsibility for Russia’s actions in Ukraine begins with President Vladi­mir Putin and other Moscow leaders, the Geneva Conventions require that the Russian military be held accountable for its violations of the laws of war. The first step should be for the United States, NATO and the Ukrainian government to release all of the available information about the Russian offenses, including the names of all individuals involved. The second step should be sanctions that would prevent Russian military officers from traveling to any Western countries regardless of the purpose. No equipment sales or technology transfers to the Russian armed forces should be approved, and no Western military should buy Russian weapon systems or equipment.

Because military establishments, by their nature, value respect and esprit de corps, ostracizing Russia’s armed forces could have a significant impact on Moscow’s behavior, getting its attention in real and immediate ways. They would also underscore the strong Western commitment to upholding the laws of war in general and the Geneva Conventions in particular.

Source: http://www.washingtonpost.com/opinions/russias-actions-in-ukraine-clearly-violate-the-geneva-conventions/2014/05/06/74c8fcde-d22f-11e3-937f-d3026234b51c_story.html

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler; they served in the Justice Department under presidents Ronald Reagan and George H.W. Bush.

The Catholic Church and the Convention on Torture

By David B. Rivkin and Lee A. Casey

The United Nations committee that monitors compliance with the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment is being urged by several influential nongovernmental organizations to condemn the Vatican when the committee meets this week in Geneva. These groups, including the Center for Constitutional Rights, Survivors Network of those Abused by Priests, and the Center for Reproductive Rights, claim that the Catholic Church’s handling of child-sexual-abuse accusations against priests and the church’s stand on birth control and abortion amount to violations of the Convention Against Torture.

If the U.N. committee were to grant the groups’ request and conclude that the Vatican has violated the Convention Against Torture, this would represent a legally insupportable and perverse interpretation of the treaty, actually weakening its effectiveness. It would also represent a blatant attack on religious freedom.

There is no doubt that for years the Catholic Church failed to deal in a timely and effective way with child sexual abuse by priests. More recently, however, the church has admitted its mistakes and instituted fundamental reforms to root out the problem, which is hardly unique to Catholics. According to the U.N.’s own World Health Organization Fact Sheet No. 150 on child maltreatment, “approximately 20% of women and 5-10% of men report being sexually abused as children.”

No one doubts the evil of child sexual abuse, but attempting to shoehorn it into the Convention Against Torture is legally incorrect. However monolithic the Catholic Church may seem, it is not a sovereign state, and the Vatican (which is) has no legal authority over the church hierarchy or the millions of Catholic believers around the world.

Although the papacy has enormous spiritual authority, its secular, legal power—which is what the treaty addresses—extends only to the 100 acres of Vatican City, which has about 800 residents. Accordingly, the Holy See in 2002 acceded to the Convention Against Torture for “the Vatican City State” and undertook “to apply it insofar as it is compatible, in practice, with the peculiar nature of that State.” Claims that the Vatican exercises such compelling control over all Catholic institutions and individuals that it bears responsibility for all of their actions reflect a basic misunderstanding of how the treaty and the church operate.

The treaty requires member states to refrain from torture and to take other actions to prevent and punish it by their citizens and within their territory. When Catholics, including Catholic clergy, commit crimes outside of Vatican City, their trial and punishment is up to the countries where crimes occurred. If church officials in those countries were complicit in the offenses, addressing that remains a matter of domestic law. All of this is well-known and accepted international practice.

Attempting to internationalize the very serious crime of child abuse by defining it as “torture” is also misguided. The treaty defines torture narrowly and is directed at states for a reason: to focus attention on repressive governments engaging in torture as a form of terror and as a means of preserving the regimes’ hold on power.

None of this makes a difference to the activists who want to accuse the Catholic Church of violating the Convention Against Torture. Among the most determined are those whose claims are a thinly veiled effort to use a U.N. forum to attack Catholic doctrine, especially the church’s stand on birth control and abortion. The Center for Reproductive Rights has even claimed that these key aspects of Catholic belief are themselves tantamount to psychological torture. How so? Because they insidiously shape human behavior, bringing feelings of shame to individuals who seek access to birth control or abortion services, and improperly use the church’s formidable spiritual authority to influence numerous governments to limit access to contraception and abortion services.

By that preposterous logic, any religious faith—or secular doctrine, for that matter—could be condemned for practicing torture if it seeks to motivate adherents to lead their lives in particular ways. This attempt to hijack the Convention Against Torture for political purposes degrades the definition of torture and undermines the treaty’s efforts to end these terrible practices.

Even critics of Catholic doctrine should appreciate that the Convention Against Torture is not the proper instrument, and its U.N. monitoring committee not the proper forum, to challenge anyone’s religious beliefs. Were a sovereign state to act in this manner and attempt to suppress or penalize religious beliefs, its behavior would violate other critical international instruments, including the U.N.’s own International Covenant on Civil and Political Rights and the Universal Declaration on Human Rights, with their explicit protections for religious liberty.

If the Convention Against Torture committee stretches the treaty to condemn an entire religious institution for the criminal behavior of individuals who belong to it, the treaty’s credibility will be dramatically diminished. That’s bad enough. But if the Convention Against Torture were used to single out the Vatican for condemnation, Catholics and Catholic clergy around the world would be marked as somehow collectively responsible for individual offenses, leaving these innocent people open to attack and persecution, particularly in countries where religious liberty is already threatened. This is not the mission of the Convention Against Torture—or of the United Nations.

Source: http://online.wsj.com/news/articles/SB10001424052702304178104579534370116475920

Messrs. Rivkin and Casey served in the U.S. Justice Department under Presidents Reagan and George H.W. Bush. They are partners in the Washington, D.C., office of Baker & Hostetler LLP.

Crippling the Intelligence We Used to Get bin Laden

Obama’s directive to protect the privacy of foreigners will make Americans less safe.

By Mike Pompeo and David B. Rivkin Jr.

On Jan. 17, in response to former National Security Agency contractor Edward Snowden’s theft of U.S. intelligence secrets and concerns over the NSA’s bulk metadata collection, President Obama issued a Presidential Policy Directive (PPD-28) that neither strengthens American security nor enhances Americans’ privacy. To the contrary, it undermines our intelligence capabilities in service of a novel cause: foreign privacy interests.

All nations collect and analyze foreign communications or signals, what is known as “signals intelligence.” American technological prowess has produced the world’s most abundant stream of signals intelligence, thwarting plots against the U.S. and saving lives. PPD-28 threatens American safety by restricting the use of this signals intelligence.

First, under the new directive, U.S. officials are required to ensure that all searches of foreign signals intelligence are limited to six purposes: countering foreign espionage, terrorism, weapons of mass destruction, cybersecurity, threats to U.S. or allied forces, and transnational crime.

Such policy guidance is appropriate in principle, but these limitations are mere window dressing. Intelligence activities are already heavily scrutinized by executive-branch lawyers to protect Americans’ privacy. Yet the intelligence community must now operate under the presumption that they are somehow engaged in wrongdoing and must justify each and every step by reference to a proper “purpose” to rebut that presumption. This will make intelligence analysts overly cautious and reduce their flexibility in handling security threats.

Second, PPD-28 extends the same privacy protections to foreigners that now apply to data regarding “U.S. persons,” defined as U.S. citizens anywhere in the world and anyone in the U.S. The most visible result will be that intelligence concerning foreigners will contain redactions of material that may have value to U.S. security and diplomacy. The policy contains an exception for information “relevant” to understanding the substantive content of foreign intelligence, but analysts will inevitably face pressure to go with the redaction rather than bring in the lawyers to justify an exception.

These new policies aren’t required by law. Just as foreign terrorists should not be read their Miranda rights, the U.S. Constitution, including the Fourth Amendment’s requirement that searches be reasonable, doesn’t apply to foreigners outside the U.S. And international law imposes no limitations on foreign surveillance. Yet in a stunning display of naïveté, Mr. Obama says it is crucial that people in foreign countries, from Pakistan to Peru, understand that “the United States respects their privacy too.” The leak last week of the recording of a sensitive phone call between two senior State Department officials regarding Ukraine—almost certainly the result of Kremlin surveillance—vividly indicates how other countries feel about protecting Americans’ privacy.

PPD-28 applies only to signals intelligence and has nothing to say about human intelligence from spies, defectors and friendly intelligence services. But this too reveals the senselessness of the new directive. If we could induce an al Qaeda leader to defect, everything in his possession could be used immediately, helping to make connections and capture or kill our enemies. But if we obtained the same information through signals intelligence, much of it would have to be redacted in the name of a privacy “right” not recognized by U.S. or international law.

This disparate treatment of signals and human intelligence will complicate “connecting the dots.” Human and signals intelligence should work together to inform policy makers of a possible threat as quickly and thoroughly as possible. But imposing different restrictions on intelligence data from human and technological sources prevents that from happening. Different data regarding the same threats will be subject to different legal requirements and limitations on use and disclosure. That will require more lawyering and more time, neither of which helps U.S. security.

History provides numerous examples of how vital it is to integrate signals and human intelligence. Their interplay has long been used to direct troop movements, bombing campaigns and drone strikes, and it was crucial to finding Osama bin Laden.

Consider the 1962 Cuban missile crisis. Seeking to upend the strategic nuclear balance, Moscow installed short- and intermediate-range ballistic missiles in Cuba, reasoning that U.S. intelligence wouldn’t detect them until they were operational. American spy planes provided only low-quality photographs (signals intelligence) of the missile sites.

But because Soviet Lt. Col. Oleg Penkovsky, a double agent, had provided British and U.S. intelligence with information about the standard Soviet missile-base layout, analysts were able to interpret the spy-plane data to ascertain what Moscow was doing in Cuba. This kind of synergy between signals data and human intelligence will be stymied by policies that undermine flexibility in the use of intelligence from different sources.

Under the Constitution, national security and intelligence are largely the president’s responsibility. Because President Obama has decided to recognize a foreign right to privacy, Congress has little ability to check his move. But lawmakers can and should shine a bright light on PPD-28 and hold him accountable for a directive that will hobble our foreign-intelligence capabilities, even as the world spies on us and threats to Americans multiply.

Source: http://online.wsj.com/news/articles/SB10001424052702303519404579353322885979550?KEYWORDS=david+rivkin

Mr. Pompeo, a Republican from Kansas, is a member of the House Permanent Select Committee on Intelligence. Mr. Rivkin is a partner at Baker Hostetler LLP and served in the Justice Department and the White House Counsel’s Office during the Reagan and George H.W. Bush administrations.

The President vs. the Senate

Now the Supreme Court will weigh in on Obama’s power play to stock the National Labor Relations Board.

By David B. Rivkin Jr. and Lee A. Casey

Later this month the Supreme Court will hear a case that should resolve how much latitude presidents have to make recess appointments to federal offices that otherwise require Senate confirmation. The boundary of this power has never been decided by the high court. Yet the entire scheme of the U.S. Constitution—which is based on a separation of powers, enforced through checks and balances to safeguard individual liberty—is at stake.

Noel Canning v. NLRB involves several recess appointments President Obama made to the National Labor Relations Board on Jan. 4, 2012. The federal appeals court in Washington, D.C., correctly held that these appointments were unconstitutional both because they filled vacancies when the Senate was not in a true “recess” between Congress’s annual sessions, and because the vacancies had not actually opened up during the purported recess.

Article II, Section 2 of the Constitution states that “The president shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The federal appellate court’s decision hewed closely to the text and original meaning of this so-called recess appointments clause. Yet the ruling stunned many constitutional lawyers. That’s because the original limitations on the president’s power to make these appointments had long since been effectively discarded.

While this challenge to presidential power touched off considerable controversy, some political observers say that the recess-appointments issue will fade because Senate Democrats recently did away with the traditional filibuster rule, requiring a “super-majority” of at least 60 senators to allow a contentious nomination to proceed to a vote. This rules change, however, does not moot Noel Canning v. NLRB or the issues it raises. Indeed, limiting filibusters will only grease the wheels of a nomination when a Senate majority approves of a particular nominee.

Even when a president’s own party controls the Senate, there are individuals who for one reason or another cannot get the nod. For example, a nominee unacceptable to his or her home-state senator can be subject to a “hold”—a still-respected senatorial courtesy. Recess appointments are not a proper means of avoiding such roadblocks.

The Constitution’s Framers considered and rejected the notion that the president should be able to staff federal offices without congressional oversight. That’s why the president must have Senate “advice and consent” for the most important appointments. As Alexander Hamilton wrote in Federalist 76, the Senate’s participation “would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

The Framers believed that vesting the entire appointment authority in the president would have made him too powerful, contrary to their key goal of safeguarding individual liberty by dividing power among the three branches of government.

The need for a presidential power to make recess appointments arose from the assumption that Congress would meet infrequently and that there would be long periods—running to many months—when critical federal offices might remain vacant because the Senate was unavailable to discharge its advice and consent function. Recess appointments are a necessary exception to the normal appointments procedures, but they are an exception.

In more recent years, however, as attitudes in Washington have hardened and become more ideological, presidents of both parties have used recess appointments to put individuals in office who the Senate either had already refused to confirm or would likely turn down if given the chance. Such individuals may serve for up to two years. Although presidential frustration may be understandable, since many nominees never even get a Senate vote, overcoming this roadblock is not the constitutional purpose of recess appointments.

To avoid being in recess, Senate Democrats began to hold pro forma sessions in the last years of the George W. Bush administration. These involved tasking, by unanimous consent, one senator from each party to “convene” the Senate for brief periods in order to “receive” presidential nominations. These pro forma sessions are not fundamentally different from the way the Senate routinely conducts its core legislative business, which also can involve passing bills by unanimous consent with few senators in attendance.

Mr. Obama made the appointments that are being challenged in Noel Canning during one of these pro forma Senate sessions. The president determined that for the purpose of considering his nominees, the Senate was not properly in session because, according to White House Counsel Kathryn Ruemmler, the Senate was “unavailable to fulfill its function.” This, of course, raised another critical constitutional question, since the Constitution vests each congressional house with the power to determine how to operate.

Permitting any president to resolve when the Senate is or is not in session upsets the constitutional balance of power among the executive and legislative branches even further. Most dangerously, a president could potentially claim that the Senate was not “in session” when certain legislation was enacted, and then refuse to enforce it on the grounds that it was invalid.

The specific issue of pro forma Senate sessions was not addressed by the lower court. But given the key constitutional prerogatives involved, the Supreme Court asked lawyers representing Senate Republicans to participate in the oral argument. This signals that the court may determine the extent of the president’s recess appointment power and decide whether the Senate’s power to determine its own rules precludes the president from questioning the constitutionality of the pro forma sessions.

The Supreme Court should affirm the court of appeals, limiting recess appointments to filling vacancies actually arising during a true Senate recess, and decisively rejecting the Obama administration’s position that the president can determine when the Senate is or is not in session regardless of the Senate’s own view. This will restore the proper separation of powers between the two political branches that the Framers clearly intended.

Source: http://online.wsj.com/news/articles/SB10001424052702303932504579252072715002560

Messrs. Rivkin and Casey, partners in the Washington, D.C., office of Baker & Hostetler LLP, have filed an amicus brief with the Supreme Court, urging the affirmance of the D.C. Circuit’s decision in Noel Canning.

The wrong ruling on NSA data collection

By Michael B. Mukasey, Steven G. Bradbury and David B. Rivkin Jr.

A federal judge’s ruling Monday that the National Security Agency’s (NSA’s) bulk telephone metadata collection is “likely” unconstitutional is wrong on the law and the facts. It conflicts with the opinions of 15 other federal judges who have sat on the Foreign Intelligence Surveillance Court and approved the NSA’s metadata collection 35 times since 2006.

U.S. District Judge Richard Leon has stayed his order to give the U.S. Court of Appeals for the D.C. Circuit the opportunity to reach its own judgment. But in the post-Snowden, anti-NSA climate pervading Washington, there is reason for concern that this opinion will amplify the caterwaul of those seeking to dismantle vital U.S. counterterrorism capabilities.

The telephone metadata collected by the NSA consists of transactional business records revealing only which phone numbers have called which numbers, when and for how long. It includes no other subscriber information, and it doesn’t enable the government to listen to anyone’s calls. This database enables intelligence agencies to discover quickly whether any phone numbers of known foreign terrorists have been in contact with numbers in the United States, a vital input in counterterrorism investigations. It is informative even when it reveals a lack of contacts.

In Leon’s view, however, the Fourth Amendment prohibits Congress from authorizing the bulk metadata collection and the focused querying of those records, even where the president has determined its necessity and it is approved every 90 days by a federal judge. No case law remotely supports this breathtaking conclusion. Liberal use of exclamation marks is no substitute.

Leon argues that the Supreme Court’s 1979 decision in Smith v. Maryland upholding the warrantless use of pen registers — devices that record numbers dialed — has become obsolete in this age of multifunction smartphones. But district judges are not empowered to declare the death of binding Supreme Court precedent. The calling-record data collected by the NSA is almost exactly the same data the police collected in Smith: the phone numbers that Michael Lee Smith called and the dates and times of those calls.

In Smith, the high court held that telephone customers have no reasonable expectation of privacy in the numbers they dial or in the calling records that phone companies generate for business purposes. And since the court’s 1967 decision in Katz v. United States , a reasonable expectation of privacy has been the measure for what constitutes a lawful search under the Fourth Amendment. Appeals courts have consistently followed Smith and applied its holding to other developing technologies, including the collection of e-mail metadata.

Although Monday’s ruling emphasizes the “all-encompassing” and “indiscriminate” nature of the NSA’s metadata collection, that does not alter anyone’s reasonable expectations of privacy. If anything, the use of a pen register to target Smith’s personal phone line was more intrusive than the NSA’s metadata collection, given the vastness and anonymity of the data set and the minuscule chance that any particular person’s calling records will be reviewed by an NSA analyst.

Leon cited the Supreme Court’s 2012 decision in United States v. Jones , but that case is not germane. In Jones, the police trespassed on a suspect’s property by installing a GPS device on his car and tracked his every move. The NSA’s bulk collection entails no physical invasion of property and does not comprehensively track individual customers’ movements and activities.

Even if phone customers did reasonably expect that the numbers they dial would remain private, Leon’s ruling makes another fundamental error when it misconstrues the “special needs” doctrine, which allows warrantless searches in special circumstances, based on a balancing of the government’s need for the information against the extent of the infringement of privacy interests.

Leon believes that the metadata program intrudes on consumers’ infatuation with their smartphones, but having stressed the lifestyle changes brought by new technology, he fails to appreciate that individual privacy is much more porous today than it was in the 1970s. Many private companies collect and analyze personal data — including the Internet companies that want the NSA to stop its surveillance efforts. Most Americans willingly accept less privacy in exchange for the conveniences the Internet makes possible. But Leon’s analysis means that U.S. intelligence agencies cannot protect Americans from foreign threats using the same analytical tools that private companies employ.

Americans know that many government agencies collect business records and information for lawful purposes and that this often includes personal data. What distinguishes the NSA is the importance of its national security mission and the extensive congressional and judicial oversight. Foreign governments, of course, collect all manner of data about Americans for their own military and commercial purposes.

Leon was not convinced that metadata collection had produced the one critical piece of intelligence needed to stop a terrorist strike just before it was carried out, but that’s an entirely unreasonable standard. Judging the value of an intelligence program demands the greatest deference to the political branches; courts are not institutionally suited to the task. NSA metadata collection is both constitutional and necessary.

 

SOURCE: http://www.washingtonpost.com/opinions/the-wrong-ruling-on-nsa-data-collection/2013/12/19/494362ee-68ca-11e3-a0b9-249bbb34602c_story.html

Michael B. Mukasey was U.S. attorney general in the George W. Bush administration. Steven G. Bradbury was head of the Justice Department’s Office of Legal Counsel during the George W. Bush administration and led the legal effort to obtain initial court approval for the NSA’s metadata collection. David B. Rivkin Jr. served in the Justice Department and the White House Counsel’s office during the Reagan and George H.W. Bush administrations.