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Susan Estrich - The value of independent judges

I suspect the NSA may have thought they got lucky when one of the first post-Edward Snowden cases to challenge their phone metadata collection was assigned to Judge Richard Leon on the federal district court in Washington, D.C. After all, Leon was appointed by President George W. Bush after a long career, much of it spent working for Republicans in Washington. In addition to his stints as a prosecutor during the Republican years, he also served as counsel for the Republicans' investigation of the Iran-Contra affair, defending the Reagan administration against charges that its official violated the rules set by Congress and lied about the operation.

Perfect choice for an embattled administration seeking to defend a secret spy program? You might think. But you would be wrong, which is why an independent judiciary is so important.

Privacy cases often make for strange bedfellows, and the plaintiff here was not the ACLU (although they have been filing similar suits), but a conservative activist who claimed that the NSA was "messing" with him by sending text messages to his client. The judge overlooked that "unusual" claim, settling instead for a less "unusual" but potentially more far-reaching base for allowing two individuals to sue: Because the government itself was describing the program as a "comprehensive metadata database," it must have collected their data along with everyone else's. Under that theory, which no one would call conservative, every American would have standing to sue.

As for the merits, Leon was even tougher. In a lengthy (68 pages for a district court opinion counts as extremely lengthy) opinion, Leon wrote, "I cannot imagine a more 'indiscriminate' and 'arbitrary' invasion than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval... Surely, such a program infringes on 'that degree of privacy' that the Founders enshrined in the Fourth Amendment."
The program repeatedly has been upheld (in secret) by judges handpicked to serve on the Foreign Intelligence Surveillance Court. Leon was the first judge not on that court to examine the data collection program at the urging of civil liberties plaintiffs as opposed to criminal defendants.

So you have an independent judge appointed by a Republican president reviewing a program that most Republicans, along with a Democratic president, have praised, and what happens? He makes an independent decision.

Those Founding Fathers of ours were clever guys. Even with all the mucking about by organized interests on both sides, the politicization of judicial nominations and confirmations by both sides, along comes a Republican judge, and he consults the Constitution and case law and (my guess) his conscience and principles — and lo and behold, one man makes a decision that could put the program on hold.

Not yet, of course. The judge was careful to stay his opinion to allow for appeal to the U.S. Court of Appeals for the D.C. Circuit — the one Obama was trying to "pack" with people who shared at least some of his views, while Republicans were refusing to vote to confirm even highly qualified appointees lest Obama take "control" of the court.

So that's where this case will go on appeal — and I defy all of the talking heads on television to predict how that court will rule. Yes, it will have more Democratic appointees than Republican appointees by the time it hears this case. But does that mean the NSA will win? Not necessarily.

Independent judges with the courage of their convictions — and the D.C. Circuit is full of them, led by Chief Judge Merrick Garland — are not mere proxies for the presidents who appoint them, even if the Senate debate might suggest otherwise. The good ones, like Leon, don't work for the politician who appointed them or the former colleagues who helped them get confirmed. They work for us.

(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)

Last Updated on Wednesday, 31 December 1969 07:00

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Have Huot Center students use Hathaway House as a project

To The Daily Sun,

I feel really bad for those people standing out in front of the Dunkin' Donuts on Union Ave. in all this cold when this problem could be fixed so easily. He blatantly lied about fixing the Hawthorne House in order to get his permit to open the new store next to the house.

If the City of Laconia hasn't got the you know what to rescind his permit for this store, then the only thing left for this person who has proved his/her word is no good, could save face and money, which is really what this greedy matter is all about, he/she could block all the windows and hire the hazardous waste people to remove the asbestos and then have the Hout Center boys and girls use this house as a learning project. This part of the high school is a trade school. This has been done before if you remember out on Parade Road where they built a house from the ground up. It would be a win-win situation.

Bev Buker

Gilford

Last Updated on Tuesday, 17 December 2013 11:14

Hits: 276

Look at gulags in Chicago & Detroit to see result of collectivism

To The Daily Sun,

Article 6-b of the New Hampshire State Constitution reads: (Use of Lottery Revenues Restricted to Educational purposes) "All Moneys received from a state-run lottery and all interest received on such moneys shall, after deducting the necessary costs of administration, be appropriated and used exclusively for the purpose of state aid to education and shall not be transferred or diverted to any other purpose." ( November 6, 1990.)

Now! My Websters Dictionary states that exclusively is defined as, "Intended for the sole use and purpose of a single individual or group". The word sole redefines exclusive as " the only one".
The New Hampshire Lottery Commision reported in 2011 that 27 percent of lotto revenues were contributed to the education system. On my Property Tax is one line for "School Tax". On another line is "State Education Tax".

It appears to me that some of our representatives have violated their oath of office. When Jeanne Shaheen was governor of New Hampshire she stated that the state lottery revenues go into the "General Fund". That is in violation of our State Constitution. I am quite sure that most people who buy lottery ticket do not know that nearly three quarters of the money they spend to support education disappears into a General Fund void.

Dale Channing Eddy of Gilford touched on another transfer of tax revenues on gasoline to unrelated areas. Bob Meade's article "hand out or hand up?" shed light on some important issues that once worked and some principles implemented now that will haunt us for decades.

Tim French of Gilford laid out some interesting facts in the Wednesday, December 11 Laconia Daily Sun. They are sad but true.

Russ Wiles wrote an interesting article on Madison Root, an 11 year old who wants to work hard and make it. She plans to work very hard at her goals. No victim ideology there. What a great example she is and will be. Thank you Russ for your article.

We have only to look at the gulags in Chicago and Detroit to see the outcome of collectivism. You can redistribute the wealth for only so long. You cannot redistribute intelligence, it comes through years of hard work and study. That is one reason we as a nation is in such a dismal stage in our existence. Fortunately there are many who have fled the plantations created by the state. Those who's only gift is talk have never gained experience to say much.

Gene F. Danforth

Danbury

Last Updated on Tuesday, 17 December 2013 11:11

Hits: 190

Selectmen were rude, combative & disrespectful to county visitors

To The Daily Sun,

I was at the Dec. 16th Gilmanton selectmen's meeting when the Belknap County commissioner came to speak about the county budget. The selectmen were rude, combative and disrespectful when asking the commissioner questions concerning the county budget. The commissioner gave his time to come to our town so we could better understand our county budget. I was embarrassed listening to our elected officials treating the commissioner in this manner.

One Selectman didn't even have the common courtesy to remove his cap.

Meg Hempel

Gilmanton Iron Works

Last Updated on Tuesday, 17 December 2013 11:08

Hits: 244

These personal experiences aren't possible in mall or at big stores

To The Daily Sun,

Christmas is drawing near and many people put thought into where they invest their money. There are many benefits for those who choose to support their community by shopping locally.
This past weekend, Wolfeboro was even lovelier than usual to shop. Thanks to the Chamber of Commerce and their efforts to make last weekend a community open house.
As I was buying a signed copy of Karel Hayes' latest book at the Country Bookseller, we were treated to some carolers dressed from the time of Charles Dickens.
Miss New Hampshire and Miss Lakes Region came by as well, also treating customers to a song.
The dancers from an upcoming performance of The Nutcracker stopped by Sprouts and gave a sampling of what is to come.
Shopping locally, however, is about more than being entertained or meeting the author who wrote the book I am buying. It is about the friends we meet on the street as we shop and the familiar faces of our community.
For me the joy comes when I see a little girl I know with her dad at Nordic Skier buying her first pair of cross county skis. It is bumping into my daughter's favorite high school teacher on the street with her mother and two boys.
I love walking in Gatherings by Stellaloona and seeing the ladies in silly santa hats handing out cookies to customers, while a drama student of mine is strumming the guitar and singing Christmas carols in the background.
It is fun to tell Sarah Copplestone at Artisans Corner which knitting bowl to tell my husband I want when I send him in to shop for me.
These experiences are not possible in the mall or big box stores. They are what make a community home and what makes a town special.

Elizabeth Cantrall

New Durham

Last Updated on Tuesday, 17 December 2013 11:04

Hits: 236

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