At the Lawfare blog, Ben Wittes offers some characteristically smart early thoughts on Liberty and Security in a Changing World, the report just released by President Obama’s “Review Group on Intelligence and Communications Technologies.” Ben’s early diagnosis is: very awkward.
The report was produced by a small group: academics Cass Sunstein, Geoffrey Stone and Peter Swire, as well as former Clinton counterterrorism czar Richard Clarke and Obama’s former acting CIA director Michael Morell. (Yes, that would be the Michael Morell who purged references to al Qaeda from the CIA’s infamous Benghazi “talking points.”) The report is awkward because it undercuts a number of positions previously taken by the Obama administration, including the president’s defense of the NSA’s controversial telephony metadata program, which collects records of telephone usage by hundreds of millions of Americans.
Prediction: If you’ve gone up in a balloon over U.S. district judge Richard Leon’s ruling yesterday, holding the NSA’s telephony metadata collection and analysis program unconstitutional, enjoy the ride while you can. It’s going to be a short one.
Judge Leon’s decision is almost comically lawless. In the most sensible part of it, he stayed his ruling for however long it takes the D.C. Circuit to hear the appeal – and doubtless reverse him.
To cut to the chase, as we have noted here before, the Supreme Court ruled in its 1979 Smith v. Maryland case that a telephone service provider’s records of a customer’s telephone activity – e.g., the fact that a call happened, the phone numbers involved, the duration of the call, but not the actual content of the call – do not implicate the Fourth Amendment. Judge Leon reasoned, if you can call it that, that he did not need to follow Smith because . . . wait for it . . . it’s a really old case and times have changed. It may be, and they may have, but lower-court judges don’t get to do that. (And how do you figure the mainstream-media organs celebrating Judge Leon today would react if some other district judge tried the “it’s too old, plus times and technology have changed” razzle-dazzle on, say, Roe v. Wade?) In the federal judiciary, only the Supreme Court has the authority to reverse its own precedents……
Remembering Mandela, without Rose-Colored Glasses
The South African reality differs from the Western lore. ‘Go safely Umkhonto. Umkhonto we Sizwe. We the members of the Umkhonto have pledged ourselves to kill them — kill the whites.” These are lyrics from the anthem of Umkhonto we Sizwe, or “Spear of the Nation.” The organization is better known as the MK, the military wing of the Marxist African National Congress (ANC). The MK was established by its commander, Nelson Mandela, to prosecute a terrorist war against South Africa’s racist apartheid regime.
Mandela had been out of prison for about two years in September 1992 when, fist clenched in the “black power” salute, he was filmed singing the anthem with a number of his comrades. Interestingly, but not ironically, as Mandela and others repeated the refrain about killing Boer farmers, it was a white man who stood next to him, similarly clench-fisted and singing. The man’s name is Ronnie Kasrils. A Soviet-trained terrorist who helped Mandela found the MK, Kasrils was a member of the Central Committee of the South African Communist Party…….