In June of 2013 a young intelligence agency subcontractor named Eric Snowden criticized the major U.S. intelligence agencies for spying on the rest of us and for dishonestly pretending that they were not doing such things. Unlike previous critics he was not almost universally dismissed as a paranoid crank. Others employees of these institutions had been fired, humiliated and even threatened with prosecution for suggesting that any of these agencies were gathering data on ordinary Americans’ private lives. Snowden did not suggest such corruption; he proved it. Several journalists received thousands of pages of documents which provided overwhelming evidence that government spy agencies have been collecting and storing information about every phone call, Email and internet use by every American. This JOURNAL OF PUBLIC LAW promptly dubbed Snowden an American hero and plunged into the ongoing debate about uses and abuses of the spying capabilities of the CIA, NSA, FBI and other such police agencies. As the JOURNAL noted then, there were some, including Vice President Dick Cheney who were just as prompt in denouncing Snowden’s disclosures as information the rest of us should not have and to condemn him for unpatriotically telling Americans that heir government was spying on them. Senator Diane Feinstein, the chair of the Senate committee entrusted to stand watchdog over federal intelligence operations, led congressional critics of the Snowden disclosures. She asked the world to accept her assertions that her committee and its House of Representatives counterpart were vigilantly monitoring the agencies which were monitoring the rest of us. The thrust of her argument was that these intelligence agencies had not and would not abuse their power to investigate any of the millions of us who lacked her committee’s authority over them. Abuses would not happen because these agencies would be held in check by their respect for the authority of these committees. So you can imagine the mixed emotions that want through the authors of the JOURNAL when on March 11, 2014 we found the following paragraph on the front page of our small town newspaper: “The head of the Senate Intelligence Committee [i.e., Senator Diane Feinstein] accused the CIA Tuesday of criminal activity in improperly searching a computer network set up for lawmakers investigating allegations that the agency used torture in terror investigations during the Bush administration.” If the Senator is to be believed the CIA first provided access to committee staffers interested in certain documents concerning the use of torture to obtain “intelligence”, then the CIA removed the same documents when it became apparent that the committee might actually use the provided information to inform the American people and the world of the truth concerning torture conducted for alleged “intelligence” purposes. If she is being truthful, and we have no reason to disbelieve her, then the power of her committee to prevent or expose corruption is so limited that the very agency she is charged with watching is doing to her what it was doing to the rest of us–abusing its power to ignore the law and our constitutional right to know what our government is doing. All of this confirms what the JOURNAL was saying back last June. The CIA and NSA and FBI are all operating outside effective oversight by the American people, and that fact raises serious concerns about the quality and future of American democracy. Thank you again for raising these issues Mr. Snowden.
Amidst the blur of reaction and analysis of Windsor [the recent Supreme Court decision that threw out the Defense of Marriage Act (DOMA), a federal law enacted by Congress in 1996 that allows states to refuse to recognize same-sex marriages performed under the laws of other states – editor] upon its release yesterday, I didn’t hear or see any discussion of Obama’s role in setting up the posture of this case.
“Although “the President . . . instructed the Department not to defend the statute in Windsor,” he also decided “that Section 3 will continue to be enforced by the Executive Branch” and that the United States had an “interest in providing Congress a full and fair opportunity to participate in the litigation of those cases.” Id., at 191–193. The stated rationale for this dual-track procedure (determination of unconstitutionality coupled with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter
of the constitutional claims raised.” Id., at 192.”
By clearly delineating the roles of the branches thusly, the administration forestalled any reasonable argument the Court could have made to avoid deciding the case on its merits on the grounds that it would be undue judicial activism. The President made his position clear, and by having Congress, as the voice of the citizenry, defend the Act, the President forced the judiciary to fulfill its role.
Windsor is a powerful precedent and represents a generational step forward for civil rights in our country; it will be analyzed, discussed, and applied for years. I just want to point out the deftness of Obama’s handling of the issue. It employed a nice balance of moral persuasion with a proper understanding of the separation of powers in the Federal government, and it was done quietly, in the background. I just hope history affords Obama the credit he is due for making the Federal government work as it was intended to work.
At seventy years of age I am probably old enough to retire from practicing law without need to apologize. But I have less than no inclination to retire. I was less eager than some to get started. In 1967 I graduated from a wonderful small law school, but did not get around to taking the state bar exam for about a year. More than another year passed before I availed myself of the fact that I passed the exam. Many more years followed before I began actually making my living by setting up a law practice in a small town. During the late sixties practicing law seemed to me to be what that generation referred to as a “copout”, meaning an escape from the available opportunities to make my work “relevent” to the challenges of those times. Oliver Wendell Holmes,Jr. had said that a man must become part of the action and passion of his times at penalty of being judged not to have lived. I had believed him, and I had no intention of being judged not to have lived. Forty three years after becoming a member of the bar, I finally see that this profession can be an escape from the temptation to retire to non-passion and inaction. Lawyering can, and for some of us it must, be a means of being fully relevant to the needs of the people and the world we have tried to love. Only love gives meaning to anything that we can do with our lives. Being seventy is not a reason to diminish what I do, only a confession of the long education that now is at hand to motivate and inform my present efforts to love.