Fazaga v. FBI

8.18.2012 1 Comment

Writing for the People’s Blog for the Constitution, Shahid Buttar observed that:

On Tuesday, August 14, a federal judge issued a disturbing ruling allowing the Federal Bureau of Investigation (FBI) to evade public accountability for infiltrating faith institutions, monitoring law-abiding people, recording sexual encounters, and then lying about all of it. Carney’s decision erodes democracy in two dimensions at once, enabling ongoing constitutional violations by the executive branch while, at the same time, eroding judicial independence.

What Buttar depicts above and throughout his article is a dualism intrinsic to a political system which observes the rule of law in some areas but not all areas. This dualism features prominently in Ernst Frankel’s seminal The Dual State. Frankel’s analysis focuses on the post-Weimar German state as used by the National Socialist to govern Germany. The gist of his analytical edifice rests upon a division of the German state into two coexisting but not equal domains. He calls one domain the Normative State. The Normative State is a domain in which the rule of law regulates social life. He calls the second and superior domain the Prerogative State. The Prerogative State is a domain defined and governed by the prerogative powers of the political sovereign, the kind of powers once available only to a Monarch. In the Prerogative State the law becomes a component of force available to the sovereign. Thus it can be said that the rule by law and coercion replaces the rule of law and legitimate authority in domain of the Prerogative State. In Nazi Germany, the object of Frankel’s analysis, Der Führer was the source of the state’s prerogative powers. In the United States today the state’s prerogative power originated in the President construed as Commander in Chief and the source of authority for the massive security-surveillance apparatus which now exists in the United States. It is this apparatus which operates beyond the reaches of the Normative State, a claim supported by Fazaga v. FBI. In his principal Fazaga ruling, a Federal Judge, Cormac J. Carney, ruled in favor of the Federal Bureau of Investigation:

After careful deliberation and skeptical scrutiny of the public and classified filings, the Court concludes that Plaintiffs’ claims against Defendants, aside from their FISA claim, must be dismissed under the state secrets privilege. Further litigation of those claims would require or unjustifiably risk disclosure of secret and classified information regarding the nature and scope of the FBI’s counterterrorism investigations, the specific individuals under investigation and their associates, and the tactics and sources of information used in combating possible terrorist attacks on the United States and its allies. The state secrets privilege is specifically designed to protect against disclosure of such information that is so vital to our country’s national security.

In his ruling Judge Carney recognized the separate and superior domain of the Prerogative State. It is, by definition, a legal space which lacks rule of law safeguards, as the victims of the FBI in Southern California can claim based on their experiences.

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A nation of laws tortures anyone? (Updates)

4.22.2011 Leave a comment

Update (4.24.2011)

Glenn Greenwald’s gloss on Obama’s Manning statement contained in the video above has Greenwald taking Obama to task for his legally dubious behavior:

It may be that Obama spoke extemporaneously and without sufficient forethought, but it is — at best — reckless in the extreme for him to go around decreeing people guilty who have not been tried: especially members of the military who are under his command and who will be adjudged by other members of the military under his command. Moreover, as a self-proclaimed Constitutional Law professor, he ought to have an instinctive aversion when speaking as a public official to assuming someone’s guilt who has been convicted of nothing. It’s little wonder that he’s so comfortable with Manning’s punitive detention since he already perceives Manning as a convicted criminal. “Sentence first – verdict afterward,” said the Queen of Hearts to Alice in Wonderland.

POLITICO suggests that Obama had what can be characterized as a Reagan Moment, that is, an instance in which the President of the United States utters nonsense or makes claims contrary to law and fact.

Update II (4.25.2011)

Kevin Zeese has provided an elaborate discussion of the problem with Obama’s Reagan Moment:

The credibility of the military justice system is being undermined by the prosecution of Bradley Manning. His abusive punishment without trial violates his due process rights; his harsh treatment in solitary confinement-torture conditions violates the prohibition against cruel and unusual punishment; and now the commander-in-chief has announced his guilt before trial making a fair trial impossible. A Bradley Manning exception to the Bill of Rights is developing as the Obama administration seeks Manning’s punished no matter what constitutional protections they violate.

Zeese continues:

President Obama’s pronouncement about Manning, “He broke the law,” amounts to unlawful command influence – something prohibited in military trials because it is devastating to the military justice system.  Manning will be judged by a jury of military officers in a military court where everyone involved follows the orders of the commander-in-chief.  How are these officers going to rule against their commander-in-chief, especially after Manning has been tortured in solitary confinement for almost a year?  Any officer who finds Manning “not guilty” will have no chance of advancing his career after doing so.

Article 37 of the Uniform Code of Military Justice makes undo command influence unlawful. Unlawful Command Influence has been called “the carcinoma of the military justice system” and is often described as “the mortal enemy of military justice.” The importance of the command structure in the military makes command influence a threat to fair trails, i.e. “because the inherent power and influence of command are necessary and omnipresent facets of military life, everyone involved in both unit command and in military justice must exercise constant vigilance to protect against command influence becoming unlawful.”

Accordingly, “Unlawful Command Influence occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.”  Further, even: “The ‘appearance of unlawful command influence is as devastating to the military justice system as the actual manipulation of any given trial.’”  The commander-in-chief announcing guilt before trial is an unprecedented case of unlawful command influence.

So, what effect will these legal rules have on the disposition of Manning’s case? They are likely to have no effect at all.

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