Kollar-Kotelly Strikes Again
Last year, Judge Colleen Kollar-Kotelly issued a ruling that said that the FEC had to regulate bloggers during the primaries and general election. Fortunately, I don’t see that ruling lasting long if it gets to the Roberts Court. That was bad enough but it’s just been revealed that she’s hurting America on a far more troubling issue: She’s talked with people in the Justice Department on what might or might not pass constitutional muster on FISA matters.
Yesterday, Hugh talked with Erwin Chemerinsky, a liberal ConLaw professor at Duke, John Eastman, law professor at Chapman University Law School and Case Western Law Reserve’s Jonathan Adler about this issue. The transcripts of those interviews are here and here. there’s precious little that Eastman and Chemerinsky agree about but they were both upset with Kollar-Kotelly’s actions. Here’s part of what they said:
HH: As detailed on this program throughout the day, both of these chief judges took unilateral decisions to declare that NSA collected surveillance could not provide probable cause for a FISA warrant, did not allow that decision to be appealed, did not communicate that decision to their other nine judges on the Foreign Intelligence Surveillance Court, if we are to believe the Washington Post account, and may have also gone far outside the ordinary scope of authority of a district court judge in directing how the government would conduct its surveillance program. To discuss this article and its implications, the Smart Guys: John Eastman, professor of law at Chapman University Law School, Erwin Chemerinsky, professor of law at Duke University Law School. I’ll begin with you, Erwin. What do you make of this?
EC: Well, I think it’s very troubling. What they’ve basically done is act instead of the legislature to create a whole new set of rules. And while I think they were acting out of noble motives, I think what it points to is we need the legislature to be doing this, not judges on their own doing this.
HH: What about you, John Eastman?
JE: Well, I mean, I think you have to understand that these decisions all occur against a backdrop of a pretty strong statement by this court’s boss, the FISA court of review, which is the appellate court over FISA matters, and that said this back in 2002. We take for granted that the president does have inherent authority to conduct warrantless searches to obtain foreign intelligence information. And assuming that is so, FISA could not encroach on the president’s Constitutional power. That’s a very strong statement by the court that sits superior to this court, that what the president was doing here was Constitutional. And then for this court unilaterally to say I’m not going to entertain any information you gained by that Constitutional activity, because I think it’s unconstitutional, I think is to basically undermine the whole notion of appellate process.
Here’s the exchange between Hugh and Professor Adler:
HH: …Today, the Foreign Intelligence Surveillance Court. Did you read the Post story today, Jonathan?
JA: I did, I did. And it’s…and we actually talked about it in my Con law class today, because we were talking about advisory opinions. And the story…I mean, it’s disturbing on a whole bunch of levels.
HH: Now please explain, because I’ve given my take to the audience, and I have not tested my take with any other professors yet. Why do you find it disturbing?
JA: Well, as a general matter, we…you know, the way our legal system is set up at the federal level is that judges aren’t supposed to give their opinions about the legal or Constitutional or even policy merits of various actions by other branches, or the Constitutionality of laws outside the conduct of a case or controversy. And yet, what it appears was going on here is the judges were saying well, if you do X and Y, that might be unconstitutional. But if you do Z, it’ll be more legal, or it’ll prevent it from being reviewed. And that sort of thing is what we want judges to be separated from. That’s why since the founding, we have recognized that judges are not supposed to give their opinion on the legality or Constitutionality of anything outside an actual case or controversy that’s being litigated and brought before them in that way.
HH: Are you also alarmed by what appears to be the manipulation of the docket, so that a class of cases only comes to Kollar-Kotelly, and that she avoided review by the Foreign Intelligence Surveillance Court appeals court on this matter?
JA: Oh, certainly. And unfortunately, there is a history of at least the appearance of the manipulation of the docket of cases in federal district court in the District of Columbia. And given that history, the appearance is very bad. I mean, I don’t like to make accusations about what judges’ intentions are and the like, but that’s one of the reasons why we have rules about how cases go through the process, and which judges they come before. And anytime a judge manipulates that, it undermines our faith that judges are neutrally applying the law, and faithfully executing their obligation. So that’s another ground on which this is troubling to me, because it raises the possibility of accusations that we don’t want judges to be subject to.
HH: How about the paragraph that reads, “Kollar-Kotelly complained to then-Attorney General John Ashcroft, and her concerns led to a temporary suspension of the program. The judge required that high level Justice officials certify the information was complete or face possible perjury charges.”
JA: Well, I have a lot of problems with that sort of ex parte communication between a judge…
HH: Exactly.
JA: …and an executive department official outside the context of a given case. Now if in a given case there’s reason to worry about the completeness of certain information, that’s one thing. But kind of this…what appears to be kind of ad hoc communication and decision making is to me, troubling. And now, some people have suggested that this sort of thing has happened for a long time in the FISA court. And if that’s true, then I think we’ve had a problem for a long time. I mean, we don’t want judges making these sorts of calls in these sorts of contexts. We want them to be…
In other words, Kollar-Kotelly shouldn’t have stuck her nose into offering legal opinions if there wasn’t a case before her. I’ve listened to Professors Eastman and Chemerinsky before and I’ve rarely heard them agree on anything. So it’s striking to me that they’re in that much agreement on an issue. When conservative and liberal ConLaw professors agree on the situation, you know that this Clinton appointee has run amok.
I’ve said it before and I’ll say it again: Get her the hell out of there. ASAP!!! She’s a meddling bonehead who doesn’t give a damn about our First Amendment Rights or the President’s Article II Constitutional authorities. For that, she should be impeached or thrown out of this responsibility. And ASAP isn’t fast enough.
(Can you tell that I take it a bit personally when someone does something that might endanger me or other Americans?) Sorry for the rant but what she did is something inexcusable. It’s inexcusable because I value human life so much and because I love freedom of speech passionately, too. And she’s endangered human life with her meddling and tried taking away some of my First Amendment rights with her ruling.
And that’s inexcusable.
Cross-post at LetFreedomRing