The seemingly omnipresent storm clouds hanging over the Constitution often make it hard to find a silver lining. Every day, the front page of The Drudge Report is littered with stories of government assaults on our civil liberties -- from local government officials all the way up to the Oval Office. Even heroic actions, such as Rand Paul’s recent filibuster in opposition to the unchecked use of drones on U.S. soil, are met by scornful catcalls from Grumpy Old Guard politicians who long ago seemed to have lost even the most basic understanding of our Bill of Rights.
But, the past several days actually have been a good week for freedom in the courts, as three decisions came back -- all on the side of Liberty.
Nanny Bloomberg Slapped Down
As everyone knows, and as I wrote back in January, New York City Mayor Michael Bloomberg has been on a moral crusade against everything from trans-fats and salt to soft drinks and prescription drug abuse. In Hizzoner’s bullying attempts to rid his city of what he considers vices, Bloomberg has employed the full power of his municipal government to strong-arm city businesses to comply with his health edicts.
Last week, Bloomberg’s ban on sugary drinks served in bottles, cups or pitchers larger than 16-ounces was set to take affect. Restaurant owners, movie theaters, and other business establishments faced significant compliance costs and lost revenue because of the far-reaching ban, and a failure to comply would have carried fines up to $200.
On the day the ban was to begin, however, Manhattan Supreme Court Justice Milton Tingling stopped Bloomberg’s plan dead in its tracks, calling the soda ban “arbitrary and capricious.” Tingling also took issue with the unprecedented legislative reach of the New York City Board of Health -- an unelected body of bureaucrats serving at the pleasure of the Mayor.
Tingling said the legal basis for the Health Board’s self-concocted legislative power, “would leave its authority to define, create, mandate and enforce limited only by its own imagination,” adding it “would not only violate the separation of powers doctrine, it would eviscerate it.” Such an attack on check and balances “has the potential to be more troubling than sugar sweetened beverages,” Tingling concluded.
Predictably, Bloomberg plans to waste more taxpayer dollars appealing the ruling. But, at least for right now, New York business owners can breathe a little easier, now that one of America’s biggest Nannies has been slapped down for his serial abuses of power.
Free Speech Bests “National Security”
While National Security Letters (NSL) date back to the 1970s, the power of the federal government to use these non-judicial directives was greatly expanded in 2001 under the USA Patriot Act. In an all-too-typical pattern of mission creep, NSLs began to be used to compel American businesses to hand-over troves of private information about customers, patients, and others. At least tens of thousands of NSLs are issued each year, and approximately 97 percent have a gag order attached to them that makes it illegal for the recipient to publicly admit -- even to the customers themselves -- that it was served with an NSL and forced to comply.
All, this did not sit well with U.S. District Judge Susan Illston, who issued a ruling last Friday that “the government's unilateral ability to prevent individuals from speaking out about the government's use of NSLs,” creates “too large a danger that speech is being unnecessarily restricted.” Illston noted the government’s failure to adequately justify its blanket prohibition on public disclosure, in addition to its lack of safeguards to prevent abuse this virtually unchecked authority.
Illston’s ruling should at least force the government to slow if not curtail its use of NSLs; and will prevent it from enforcing nondisclosure provisions. Although Illston stayed her ruling for 90-days, which gives the government a chance to appeal the decision, the ruling constitutes an important victory that will allow for greater public debate about the government’s vast “national security” powers.
C.I.A. Can’t Hide Its Role in Drone Strikes
One of the most important tools for government watchdogs is the Freedom of Information Act (FOIA) request. My watchdog organization Liberty Guard, for example uses FOIA requests to expose government corruption and malfeasance. The ACLU, however, was stunned when the Central Intelligence Agency used an old Cold War-era defense to avoid cooperating with the ACLU’s request for documents regarding the agency’s role in drone strikes, including legal justifications for such strikes.
The CIA said that the “existence or nonexistence” of CIA records subject to the FOIA request would reveal its role, or mere interest, in drone strikes on targeted individuals – which, the Agency considers a “national security risk”. This was a defense U.S. Court of Appeals Justice Merrick Garland simply was not buying, calling the government’s excuse “neither logical nor plausible.” Garland noted that numerous federal officials, including President Obama, have previously discussed at length the CIA’s interest in drone strikes. The jurist concluded with the common-sense view that, “as it is now clear that the Agency does have an interest in drone strikes, it beggars belief that it does not also have documents relating to the subject.”
The case was sent back down to the lower courts, which previously sided with the CIA based on the “unqualified: blanket defense long cited by intelligence agencies as a shield against disclosing anything about anything. Garland, however, rejected that argument. This will be an important case to keep an eye on, because of its implications in not only shedding more sunlight on the government’s ultra secret drone program, but also in protecting the efficacy of FOIA requests in exposing government corruption.
All in all, a good week for individual liberty, something that doesn’t happen too often.