FIVE YEARS OF IMPORTANT NATIONAL SECURITY JUDICIAL DECISIONS
(As of September 1, 2006)
Americans who believe that judicial decisions should be rendered on the basis of what the law is,
rather than be regurgitated from a judge’s partisan political intestinal tract, were rightly disgusted by
the recent “anti-surveillance” ruling by United States District Judge Anna Diggs Taylor.
Indeed, for the last couple weeks the Internet has been ablaze with condemnations of her screed,
something more resembling the script from an ACLU fundraising rally than a legal decision from a
life-tenured federal judge.
Taylor’s decision was so indefensible that The New York Times ran a front page article by its legal
affairs reporter critical of what she had written: “Even legal experts who agreed with a federal
judge’s conclusion . . . were distancing themselves from the decision’s ‘reasoning’.” (Inside quotation
marks are mine.) He added that legal experts “said the opinion overlooked important precedents,
failed to engage the government’s major arguments, used circular reasoning, substituted passion
for analysis and did not even offer the best reasons for its own conclusions.”
But even though Taylor, carrying water for the left’s sabotage of the nation’s war against radical
Islam, tried to undercut this nation’s mortal (and moral!) battle by ruling the president’s electronic
surveillance program unconstitutional, and even though countless blogosphere-niks were (rightly)
up in arms, Taylor’s ruling is of no legal importance at all.
That’s because virtually every time a district judge interprets or applies a federal statute or a
constitutional provision, that decision is reviewed by a United States Court of Appeals and
sometimes later by the Supreme Court of the United States.
Unfortunately, however, although several decisions rendered by the United States Courts of Appeal
since September 11, 2001, have been responsive to national security concerns, just the opposite is
true of decisions from the Supreme Court of the United States.
Elsewhere, I have written extensively about the Supreme Court’s Padilla, Hamdi, Rasul, and
Hamdan decisions (see.www.henrymarkholzer.com, in the “Articles” category), and there is no
need to reiterate that commentary here because at the moment we’re not concerned with the
Supreme Court.
Many of the cases presenting national security issues decided by federal Courts of Appeal since September 11, 2001, arose in the context of administrative immigration (e.g., asylum) and
deportation (e.g., overstayed visas), proceedings. Others presented non-constitutional issues.
For example, the “National Security Entry-Exit Registration System” (NSEERS) authorizes the Department of Homeland Security (DHS) to monitor aliens in the United States “who may present elevated national security concerns” because they come from countries that are associated with
terrorist activities. In one case, Asad Iqbal Abdul Aziz, a Pakistani by birth and citizenship, was
ordered deported by an Immigration Judge and that decision was affirmed by the Board of
Immigration Appeals. After that, Aziz went to court claiming, among other things, that his Miranda
right (“you have the right to remain silent,” etc.) was violated by immigration agents. The United States Court of Appeals in Aziz v. Gonzales ruled that Miranda warnings are not required in deportation proceedings because they are civil not criminal, and that ordinarily the “exclusionary rule” (suppressing evidence) is equally inapplicable.
Another line of administrative law cases involves the Attorney General’s designation of “foreign
terrorist organizations.” For example, in National Council of Resistance of Iran v. Department of State, the United States Court of Appeals for the District of Columbia Circuit (in an opinion by then-Judge, now-Chief Justice, John Roberts) ruled that the plaintiff’s designation by the AG as an FTO had substantial support in the administrative record, and thus there would be no judicial intervention. In Holy Land Foundation for Relief and Development v. Ashcroft, the Muslim organization sued to challenge its designation as an FTO and the government’s blocking of its assets, asserting violations of the First, Fourth, and Fifth Amendments, the Religious Freedom Restoration Act (RFRA) and the Administrative Procedure Act. Despite this gaming of our Constitution, laws, and judicial system (which our enemies know very well how to do), “substantial evidence” in the administrative record supported the AG’s determination, and because there were no constitutional violations there was no judicial relief. The same result occurred in People’s Mojahedin Organization of Iran v. Department of State, where the
United States Court of Appeals for the District of Columbia Circuit ruled, as it had in the other two
cases, that the government’s FTO designation was unassailable judicially.
Still, decisions like these have not stopped our adversaries from trying other ways to game the system. They have tried, unsuccessfully, to use the Freedom of Information Act (and claims the First Amendment) to obtain information about post-September 11, 2001, detainees (Center for National Security Studies v. United States Department of Justice)
Because judicial review of immigration decisions concerning subjects like asylum and deportation is extremely deferential to the administrative agency, because the immigration- and deportation-type cases that have reached federal courts of appeal since September 11, 2001 didn’t “make new law,” especially on constitutional subjects, they have not been included in the following discussion.
One important decision, handed down only a few weeks ago, MacWade v. Kelly, involved the Fourth Amendment’s guarantee against unreasonable search and seizure. New York City instituted a program of random, suspicionless searches of subway passengers’ packages, purses, briefcases, etc. A lawsuit was brought alleging that the searches violated passengers’ civil rights. Their complaint was dismissed in the district (trial) court, and they appealed. The United States Court of Appeals for the Second Circuit ruled that the importance of preventing a terrorist attack on the subway triggered the “special needs” exception to the usual requirement of a search warrant.
Another Fourth Amendment case was In re: Sealed Case, emanating from the Foreign Intelligence Surveillance Court, which is responsible for reviewing government requests for electronic surveillance authority in national security cases under the Foreign Intelligence Surveillance Act (FISA). The court had ruled that FISA required the government to demonstrate to the FISA court that its primary purpose in conducting electronic surveillance was not criminal prosecution, but rather the gathering of intelligence.
A higher court—the Foreign Intelligence Surveillance Court of Review—ruled otherwise: it was not necessary for the government to make such a showing. Also, the amendment of FISA by the initial
Patriot Act, permitting the government to conduct surveillance of foreign agents if obtaining foreign intelligence is the “significant purpose,” did not violate the Fourth Amendment.
Another constitutionally-based decision was El-Shifa Pharmaceutical Industries Company v.
United States, decided by the United States Court of Appeals for the Federal Circuit. The case grew out of then-President Clinton’s Lewinsky-distracting Tomahawk missile attack on an aspirin manufacturing plant in Khartoum, Sudan. The company sued the United States government alleging
that the missile strike was a “taking” under the Fifth Amendment’s eminent domain clause, entitling the aspirin-makers to “just compensation.” The trial court dismissed the complaint, and the Sudanese appealed. Putting aside the chutzpa of the claim itself—for the bringing of which the lawyer should have been sanctioned—the court’s ruling was important because it was rooted in Article II of the Constitution, which makes the president Chief Executive and Commander-in-Chief. The Court of Appeals decision ruled that it had no power to second-guess the president’s determination that the aspirin plant was enemy property and whatever interest the Sudanese might have had in not being deprived of their property was outweighed by the president’s power to wage war.
The fourth constitutionally-based decision was North Jersey Media Group, Inc. v. Ashcroft, in the United States Court of Appeals for the Third Circuit. The Attorney General of the United States determined that certain persons might have connections to, or knowledge about, the September 11, 2001, terrorist attacks, and thus their deportation hearings were “special interest” cases which would be closed to the press and others. The district judge granted preliminary relief to the publishers, and the government appealed. The Court of Appeals ruled that the newspapers had no First Amendment right of access to deportation proceedings which, according to the AG, presented significant national security concerns. (The Sixth Circuit, in Detroit Free Press v. Ashcroft, went the other way, ruling that there was a First Amendment right of access to deportation proceedings.)
Two other decisions dealt with the federal statute that Taliban John Walker violated: providing material support to a government-designated foreign terrorist organization.
First was United States v. Hamoud. The defendant was convicted by a jury on several charges, including “material support.” On appeal, he claimed principally that the statute violated his First Amendment right of free association (which is one of the arguments Taliban John made), and that he had a right to challenge the government’s determination that the organization was a “foreign terrorist organization.” The United States Court of Appeals for the Fourth Circuit disagreed, and Hamoud’s conviction was affirmed.
The second case was United States v. Afshari, decided by the United States Court of Appeals for the Ninth Circuit. Afshari and other were indicted under the “material support” statute, and claimed it constituted an unconstitutional abridgement of their First Amendment right to free speech. Like Hamoud, they also claimed they had a right to challenge the organization’s status as a “foreign terrorist organization. The district judge agreed, but the Ninth Circuit reversed.
In Sterling v. Tenet, a former covert agent of the Central Intelligence Agency sued under Title VII alleging race discrimination. The government countered by asserting the “state secrets privilege,” which prevents courts from deciding cases that would require the disclosure of information dangerous to national security. Thus, the district judge dismissed the former agent’s complaint. On appeal, the United States Court of Appeals for the Fourth Circuit agreed, ruling that the materials the agent would have to use to make his case were indeed covered by the state secrets privilege.” The court affirmed the dismissal of his complaint.
There will be many more cases like these because our adversaries, with the aid and comfort provided them by such legal-left co-conspirators as the ACLU, Center for Constitutional Rights, and National Lawyers Guild, will continue their attempt to destroy our system by turning it against itself. While the federal Courts of Appeal have so far stood as a bulwark against these machinations, regrettably a majority of the Supreme Court of the United States since September 11, 2001, has provided a significant amount of aid and comfort to our enemies.
