A few days ago, I posted two links to jury nullification and the FISA immunity Act.
I would like to thank those who responded. You have helped clarify -- for me -- how there might be a plausible scenario for a jury to nullify the FISA immunity act through "jury nullification."
Note: Tweet of original diary.
This diary concludes with possible evidence of WH, Congressional connection with NYPD-CIA surveillance in NYC.
For the most part, it was interesting to post just two links, and provide no detailed analysis. I've found that longer posts tend to get skipped; and I'm surprised that there were eight (8) comments; I wasn't expecting as many interesting reactions as were posted.
Thanks again to those who posted responses.
My purpose in providing these detailed comments is to expand on my thinking since the original post; and incorporate the responses in what I believe might be an interesting way to discuss on Kos the future of the FISA Immunity Act.
One of the ironies for those arguing against "nullification" is saying that juries may not ignore laws, while the President and telecoms can. That doesn't make sense.
That contradiction does not withstand reasonable scrutiny; leaving the impression the US judicial system is partial, as it should not be. If the President says the laws he agrees to follow can be ignored, surely others reviewing that abuse of power should be able to strike down laws which says his abuse of power "cannot" be reviewed.
Why is the President, on his own without coordination with the courts or Congress, allowed to violate the law after the Executive Branch has assented; but those deciding on a case should not be able to exercise the same discretion in whether the law does or doesn't get enforced?
Seeing no reasonable answer, we continue. We the People cannot be constrained in our oversight; our review cannot be limited; either We the People, or someone else conducts oversight. However, we don't see that oversight; we see excuses to (improperly) justify two standards:
Unequal Preservation of Power, Oversight: On the Road to Tyranny
(These standards improperly exist re FISA, jury nullification, and immunity)
First, the President can do what he wants, during wartime, without judicial review; while those who identify abuses during wartime cannot conduct oversight.
Second, the President can ignore the laws; while We the People cannot ignore laws shielding abuse of power.
Principle: Either we agree to preserve the rule of law; or we recognize that there is matching power to strike down roadblocks to oversight of those breaches. Without the former, there must be the latter.
Rather, where the President asserts powers not delegated, there should be matching power to check that non-compliance. Hence, a reasonable question:
Who says the juries cannot exercise "jury nullification re FISA Immunity" when the President says the original FISA laws do not apply?
No President can assert powers which cannot be checked; arguably, jury nullification is a way for We the People to check the Executive's non-compliance with FISA; and strike down, negate, or nullify the enforceability of the FISA Immunity Act granting immunity to the telecoms.
Some Legal Issues
FISA Immunity Act: An unlawful assertion of Judicial Power
First, the FISA Immunity Act is not a done deal; it remains the subject of pending litigation. This could mean that the immunity Act -- if struck down -- could open the door to civil challenges to the alleged FISA violations.
Second, one legal question is whether Congress -- by enacting the FISA Immunity Act against pending litigation re alleged TSP-related FISA violations -- was exercising judicial power. Arguably, the Act could be struck down because Congress, in enacting the Statute, intended to affect the outcome of pending cases, something which is an assertion of judicial, not legislative power.
Third, none of the responses to "jury nullification" adequately discussed the Supreme Court opinions re the lawfulness of "jury nullification."
Even if not struck down, FISA Immunity Act has not closed all doors to judicial or jury review
Fourth, none of the responses adequately reviewed the existing options for grand juries to review FISA violations, even those which occurred after 2001 under TSP. The FISA Immunity Act does not expressly prohibit a runaway grand jury from expansively reviewing legal questions beyond what the FISA Immunity Act has expressly prohibited.
Discussion of some of the responses
One commenter said there was "no jury" reviewing FISA Cases. That's assuming that there was a lawful review of the original request; and that there is no subsequent investigation by a grand jury.
The pre-emption clause in Section 803 says,
"No State shall have authority to. . ."
That does not expressly deny a
federal grand jury --
on its own -- from requesting information related to TSP's alleged breaches of the FISA Act. Arguably, it only prevents the states; we see nothing before us that equates a "grand jury" with a state; and finding none, there is no express prohibition in Section 803 barring any federal grand jury from reviewing TSP.
One response claimed that the FISA Court does not include juries; that is not related to a civil action to seek relief, under 1810. Under civil law, there is a right to seek monetary damages, thus this doesn't address whether nominal damages might be awarded:
how does jury nullification help after the judge throws the case out?
original comment
One of the responses . . .
"Jury nulification is not recogized as legitimate in any court I've heard of in modern times"
. . .(apparently) missed this section of the article:
"The Supreme Court of the United States has not recently confronted the issue directly"
One claim is that there is no jury in FISA cases:
Original: "Also, in this specific instance, there is no jury in a FISA case to nulify"
The jury isn't being nullified, but the law is.
However, what if "jury nullification" were used to derail government enforcement of this provision of the FISA Immunity Act:
The United States may bring suit to enforce the provisions of this section.
The government can't realistically enforce the law during a jury trial if the jury says the US government has no legal authority to prosecute someone, and nullifies the enforcement provision of the 2008 Immunity Act.
The original post did not outline a "specific" instance, so it's incorrect to suggest that there would or wouldn't be a FISA case with or without a jury. Rather, when people talk about the "FISA court," commentators are (usually) talking about the judicial review to approve or disapprove a government request for a warrant.
However, the FISA court is not the final say on whether there is or isn't a civil case, per 1810; if the FISA court was the final authority on both the warrants and the review for damages, then there would be abuse, as there is now under the Immunity Act.
There needs to be a forum to review the abuses -- not just those violations of FISA; but the inconsistency between the government exercising discretion on the law; but no (apparent) balanced discretion on whether to target those who have reported or have been aware of abuses under TSP and other domestic surveillance programs.
Conclusions
1. Jury Nullification Remains an Option to Enforce FISA Against Telecoms
We believe that jury nullification remains an option by a federal grand jury -- or other "non-state" actors, like We the People" -- to nullify the intent of the FISA Immunity Act: To thwart enforcement of FISA against US government personnel, contractors, and agents who knew or should have known the activity breached FISA without an adequate warrant.
If the Courts will not enforce FISA, but (retroactively) enforce the FISA Immunity Act (legislative assertion of judicial power), a jury might check that alleged breach of fiduciary duty -- to We the People and the Constitution -- and refuse to enforce the FISA Immunity Act.
2. Non-State Actors Not Prohibited Investigating FISA Violations
Even if the litigation and judicial outcome does not strike down the FISA Immunity Act, the FISA Immunity Act does not close all doors to non-state actors.
It remains an open question, possibly subject to a legal test, whether "jury nullification" is successfully used to thwart enforcement of Section 803 of the FISA Immunity Act.
3. Inadequate Rejection of Jury Nullification
Although responding to a short post, none of the responses adequately derailed all prospects of a jury nullification of the FISA Immunity Act. The FISA Immunity Act only prevents the States from taking action, and is silent on whether a grand jury -- or non-state actors -- can or cannot investigate or start proceedings.
Where there is silence, Congress has not expressly banned that forum from investigating violations of FISA. Had Congress intended for "all" investigations by non-state actors to cease, it would have expressly stated. Seeing no express language, there is no express ban.
4. Distinction Between FISA Court Approving Warrants, Civil Remedies for Violations
It is incorrect to suggest that the same FISA Court will decide the warrants and the civil liabilities for FISA violations. That would put the same court in the role of reviewing it's own -- possibly flawed -- original oversight.
5. Power Must Be Checked
Laws are not reasonable when they put the government above the law. With respect to FISA violations, there need to be balanced provisions to immunize those who raised the reports of that alleged original wrongdoing.
6. Should be Balanced Provisions Following Amnesty or Immunity
It appears whistle blowers remain subject to prosecution for reporting TSP-related FISA violations; while those who have breached FISA enjoy immunity. That doesn't seem reasonable; rather, if there is immunity for the telecoms, then there should be immunity for those reporting those violations. There's protection for those making good faith reports of alleged terrorism; but no apparent similar-balanced protection for reporting breaches of FISA.
7. Executive Remains Subject to FISA, Regardless FISA Immunity Act
The FISA Immunity Act is the subject of pending litigation, and this suggests that efforts to continue litigation against the telecoms and others is on the table, especially where the President exercises power to ignore the law. Had a President been above the law during wartime, Youngstown would not have had any effect. It did, and the President remains subject to the law, during wartime, re FISA and alleged breaches by TSP of FISA.
8. Impermissible Vacuum of Oversight Power during Wartime
The FISA Act, as originally crafted, was clear: The President remains subject during wartime to following rules related to electronic surveillance. Because the FISA Court was empowered to review the Presidential operations in secret, DOJ OLC's claims of a need for "state secrecy" fails. Judicial officers do keep information secret, as evidenced by their review of information classified under the "state secrets" doctrine.
DOJ OLC has incorrectly argued that where the FISA Act was silent -- re Presidential power to ignore the FISA Act, thereby granting the President power to do things -- there should be deference to an assertion of Executive power, regardless FISA. We disagree.
However, let's apply the flawed DOJ OLC thinking to oversight. DOJ OLC argues there is a lack of specificity in FISA, and it is silent on whether the President can or cannot do things under FISA. DOJ OLC argues that where there is silence by Congress, the President is not expressly constrained.
We disagree with this DOJ OLC reasoning, but there is an opportunity: Where there is power, there must be some sort of oversight or matching assertion of power. Either power is delegated to the Congress, Judicial branch, Executive, or the States; where none is delegated, that power -- here, the power of oversight -- remains with We the People.
If that is true -- that silence re the President and FISA grants the President authority to do something -- then We the People are also not expressly denied by Congress in FISA the power to review the President's alleged breaches of FISA. Where DOJ OLC says the President cannot be constrained with using power re FISA, neither can We the People in reviewing that power.
The Congress asserts through the FISA Immunity Act that no-one, not even a state-based actor, can review breaches of FISA violations under TSP. However, We the People must have some option to review those abuses, otherwise we do not have oversight, but tyranny.
Distinguishing Between Investigations by We the People and "State"
We believe that the term "We the People" is not the same as "the state," in re Section 803 of the the FISA Immunity Act;
Thus, we argue that "We the People" cannot be constrained in conducting an expansive investigation -- both retroactively and prospectively -- of the President and telecom's alleged violations of FISA, regardless the express or implied intent of the FISA Immunity Act.
9. Primary Purpose of We the People: Conduct Oversight to Defend the Constitution
DOJ OLC argues the President retains the power to collect intelligence in violation of FISA because his primary intention of that collection is not to prosecute, but to defend the Constitution. Therefore, because the primary intention of We the People is to defend the Constitution, We the People should also be able to collect information without regard to FISA, because we intend not prosecute the President, but to conduct oversight and conduct a defense of our rights through civil litigation.
Said another way, DOJ OLC argues that the President can breach FISA because his 'primary' intent is 'not' to gather evidence for prosecutions, but to collect information related to national security. The "primary" or "substantial" purpose of that breach of FISA is not for criminal prosecution, but to defend the nation.
We disagree with the DOJ OLC's calculus; but applying the DOJ OLC argument (or excuse) . . .
We the People -- because our primary intention is to conduct oversight to preserve the Constitution -- we "should" be able to conduct electronic surveillance of the President's violations of FISA, especially when those alleged breaches of FISA are connected with CIA-NYPD operations in NYC. Without oversight and monitoring by a group outside the Executive, judicial, and legislative branches, there doesn't seem much prospect that there will be independent oversight of FISA violations.
We believe there is evidence connecting the President and Congress to domestic surveillance through CIA-NYPD operations in NYC; and that the location of this collected information is outside what the CIA IG plans to review.
If you would like to know details of how this operation was permitted, reviewed, and monitored by the Congress and President, indicate in the comments.