The argument took place in 2008, but it’s just coming to light now because terrorists. Tim Cushing at Techdirt offers some highlights of the government’s view of how and why the government justifies its surveillance, contained in the just-released “oral arguments presented by Yahoo’s counsel (Mark Zwillinger) and the US Solicitor General (Gregory Garre).”
Included are such gems as this:
Zwillinger opens up the arguments by questioning the government’s methods of determining who should be placed under surveillance.
Why I show this to you is because I think it’s a perfectly fair question for you to ask the Solicitor General of the United States how a name gets on this list. This isn’t reviewed by a — the FISA Court. These names aren’t reviewed by the Attorney General of the United States. The difference between surveilling an account and exposing someone’s most private communications and not is how a name gets on this list; and all we know about it from page 47 of their brief, is that an intelligence analyst puts it on the list.
And the Solicitor General’s position:
MR. GARRE: I don’t think anybody would argue that the Fourth Amendment would apply to that communication, even though the email communications go to account in Sunnyvale, California. I haven’t understood Yahoo to argue that the Fourth Amendment would be implicated by that.
And, similarly, the Fourth Amendment isn’t —
JUSTICE SELYA: You mean the interception there by you and Yahoo would not implicate the Fourth Amendment?
MR. GARRE: That Certainly would be the government’s view.
But all of this pales in light of the words of Judge Morris S. Arnold. If they sound familiar, they are. This was the argument made, and roundly ridiculed, by Congressman Mike Rodgers, chair of the House Intelligence Committee.
Vladeck: But who would be complaining?
Rogers: Somebody who’s privacy was violated. You can’t have your privacy violated if you don’t know your privacy is violated.
Up to now, this lunacy was attributed to a politician, who is allowed under our system of democracy to be as stupid as his voters allow him to be. As it turns out, Rodgers didn’t come up with this rationalization by himself. From a twit by Trevor Timm:
This exchange is fascinating in two respects. The first, obviously, is Judge Arnold’s inexplicable “no harm, no foul” perspective, because there can be nothing wrong with some peeping Tom looking into someone’s bathroom window if the person seen doesn’t know he’s there.
But Judge Arnold compounds the problem with his reply to Zwillinger’s response. If there’s a general sense that the government is surveilling us, then “the market’s already discounted for any injury.” Given that the myriad things about which people are concerned, it’s a truism that it never really matters until it touches their lives, the fact that they may be on a list somewhere because a clerk in the bowels of government decided to put them there, the actual target of government surveillance, completely changes the equation. Oh no, the market hasn’t begun to adequately discount the injury until a person realizes that he’s the party injured.
Pondering how Judge Buzz Arnold of the 8th Circuit could utter these words, I turned to the most notable 8th Circuit critic around, Judge Richard Kopf, for his view of Judge Arnold.
To say that Judge Morris S. Arnold (Buzz), of the United States Court of Appeals for the Eighth Circuit, is brilliant understates the truth. The word “polymath” is a perfect description of the judge. In addition to being a highly regarded legal scholar, the judge is a historian of the first rank.
He was a professor at the Indiana University School of Law in Bloomington from 1971-1977. He was then the university vice president and professor at the University of Pennsylvania Law School from 1977–1981, when he returned to Arkansas as a professor at the William H. Bowen School of Law at the University of Arkansas at Little Rock from 1981 to 1984. In 1985, he returned to Indiana as Dean of the law school.
In October, 1985, Judge Arnold was appointed as a district court judge, and elevated to the 8th Circuit in 1992. A most impressive resume, for sure. A brilliant legal scholar in the eyes of his brethren, apparently. And yet, the transcript doesn’t lie.
There are many people whose cynicism toward the law and the courts will make them laugh derisively at what comes next, but for those of us who have spent our adult lives trying to make some small amount of headway by convincing the berobed to get their heads out of their butts, we do so in the belief that despite our political and experiential differences, we are, for the most part, reasonable people. We believe that, as reasonable people, we can employ facts and logic to reach a better understanding of what’s real and what’s nonsensical.
Reading these words coming from the mouth of a “polymath” breaks my cold, dark, lawyerly heart. These are not the words of disagreement or dispute; these are the words of someone who lacks any desire to impair the mission of the government at the expense of the people. With these words, we not only lose, but we have no hope.