FacebookTwitterGoogle+RedditEmail

Law as Farce

by WILLIAM A. COHN

Prague.

After reading this morning’s NYT report which revealed that the Foreign Intelligence Surveillance Court legitimized NSA metadata collection for more than seven years without providing a legal rationale I thought of: The Emperor’s New Clothes; The torture memos from Bush 43’s Office of Legal Counsel; Putin’s release of his high profile foes from prison; and light vs. dark (aka Snowden et al. vs. secrecy). Read on.

The releases of Putin’s high profile foes underscored the arbitrariness of the Russian justice system. The rule of law requires an engaged civil society with the breathing space to demand accountability of those in power, which in turn requires independent institutions serving the people. That Putin could so rapidly get Parliament to pass an Amnesty law and the Judiciary to order the release of prisoners exposes the travesty of Russian justice. As a Pussy Riot musician said, “They put me in, they let me out,” noting that the timing was “ridiculous” coming so close to the end of her sentence. Both released musicians said they asked to be allowed to finish their sentence, but were forced to leave prison as part of Putin’s PR campaign for the upcoming Sochi Olympics.

With Obama’s Jan. 17 speech on NSA Spy-Gate failing to quell civil unrest, the Privacy and Civil Liberties Oversight Board today released its findings that NSA metadata collection is unlawful and should stop. Most revealing was Charlie Savage’s reporting that from May 2006 to August 2013 the FISC authorized Patriot Act Sec. 215 overriding the Electronic Communications Privacy Act without any legal opinion to support the clear violations of the ECPA, let alone the Fourth Amendment. Yes, secret law is an oxymoron – meaning lawlessness.

The torture memos by John Yoo, Jay Bybee, and Steven Bradbury were written because CIA criminality was exposed by leaks, so the Bush cabal felt they needed legal cover. Had Jane Mayer and Dana Priest not used leaked information to write about the outsourcing of torture and secret CIA-run prisons in Europe, no such twisted law, logic and morality as evinced by those memos would be needed. Likewise, but for Ed Snowden and Glenn Greenwald, the FISC would still be the secret handmaiden of the national security state.

Belief in the “trust us” rationale for secret law-making requires belief that the world is black and white, with clear good guys vs. bad guys. Thanks to transparency abetted by technology, we see that all powerful states are dirty. And so, when the Emperor claims that he is well-robed in his language of democracy and rule of law, we clearly see him naked.

Judge Claire Egan’s August 29, 2013 opinion endorsing the legality of NSA metadata surveillance is an abdication of the duties of an independent judiciary. She calls the issue a political question, not a legal one: “a matter for the political branches to decide.” The statutory analysis in the opinion is flawed. Indeed, it is for the courts to decide when an act is unconstitutional. Three co-equal branches, right? And, the power of judicial review is the final constitutional check against abuse. Yet for more than seven years, the law was completely silent as the national security state accreted ever-greater illegitimate power. Her lame legal justification for NSA metadata collection was compelled by public protest.

It is indeed a ripe time for the people of the world to raise their voices. For we, are the ultimate check against tyranny. The evidence is clear that we are needed. Law demands accountability. Secrecy affords impunity. While big brother is zooming you, zoom on him and tell the world what you see. Let the sun shine in. From Sochi to your home state raise your voice at this travesty of justice, while you still can.

William A. Cohn is a member of the California Bar, lectures on law, ethics and critical thinking at the University of New York in Prague and is a visiting professor of jurisprudence at New York University in Prague where a Public Forum on NSA global surveillance will be held on February 19 at 6 p.m.

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

April 26, 2017
Richard Moser
Empire Abroad, Empire At Home
Stan Cox
For Climate Justice, It’s the 33 Percent Who’ll Have to Pick Up the Tab
Paul Craig Roberts
The Looting Machine Called Capitalism
Lawrence Davidson
The Dilemma for Intelligence Agencies
Christy Rodgers
Remaining Animal
Joseph Natoli
Facts, Opinions, Tweets, Words
Mel Gurtov
No Exit? The NY Times and North Korea
Alexandra Isfahani-Hammond
Women on the Move: Can Three Women and a Truck Quell the Tide of Sexual Violence and Domestic Abuse?
Michael J. Sainato
Trump’s Wikileaks Flip-Flop
Manuel E. Yepe
North Korea’s Antidote to the US
Kim C. Domenico
‘Courting Failure:’ the Key to Resistance is Ending Animacide
Barbara Nimri Aziz
The Legacy of Lynne Stewart, the People’s Lawyer
Andrew Stewart
The People vs. Bernie Sanders
Daniel Warner
“Vive La France, Vive La République” vs. “God Bless America”
April 25, 2017
Russell Mokhiber
It’s Impossible to Support Single-Payer and Defend Obamacare
Nozomi Hayase
Prosecution of Assange is Persecution of Free Speech
Robert Fisk
The Madder Trump Gets, the More Seriously the World Takes Him
Giles Longley-Cook
Trump the Gardener
Bill Quigley
Major Challenges of New Orleans Charter Schools Exposed at NAACP Hearing
Jack Random
Little Fingers and Big Egos
Stanley L. Cohen
Dissent on the Lower East Side: the Post-Political Condition
Stephen Cooper
Conscientious Justice-Loving Alabamians, Speak Up!
Michael J. Sainato
Did the NRA Play a Role in the Forcing the Resignation of Surgeon General?
David Swanson
The F-35 and the Incinerating Ski Slope
Binoy Kampmark
Mike Pence in Oz
Peter Paul Catterall
Green Nationalism? How the Far Right Could Learn to Love the Environment
George Wuerthner
Range Riders: Making Tom Sawyer Proud
Clancy Sigal
It’s the Pits: the Miner’s Blues
Robert K. Tan
Abe is Taking Japan Back to the Bad Old Fascism
April 24, 2017
Mike Whitney
Is Mad Dog Planning to Invade East Syria?    
John Steppling
Puritan Jackals
Robert Hunziker
America’s Tale of Two Cities, Redux
David Jaffe
The Republican Party and the ‘Lunatic Right’
John Davis
No Tomorrow or Fashion-Forward
Patrick Cockburn
Treating Mental Health Patients as Criminals
Jack Dresser
An Accelerating Palestine Rights Movement Faces Uncertain Direction
George Wuerthner
Diet for a Warming Planet
Lawrence Wittner
Why Is There So Little Popular Protest Against Today’s Threats of Nuclear War?
Colin Todhunter
From Earth Day to the Monsanto Tribunal, Capitalism on Trial
Paul Bentley
Teacher’s Out in Front
Franklin Lamb
A Post-Christian Middle East With or Without ISIS?
Kevin Martin
We Just Paid our Taxes — are They Making the U.S. and the World Safer?
Erik Mears
Education Reformers Lowered Teachers’ Salaries, While Promising to Raise Them
Binoy Kampmark
Fleeing the Ratpac: James Packer, Gambling and Hollywood
Weekend Edition
April 21, 2017
Friday - Sunday
Diana Johnstone
The Main Issue in the French Presidential Election: National Sovereignty
FacebookTwitterGoogle+RedditEmail