Gadfly is Marty Aussenberg, a columnist for the weekly Memphis Flyer. Marty is a former SEC enforcement official, currently in private law practice in Memphis, Tennessee. (A full bio is below the fold.) Cross-posted at The Memphis Flyer.

As the tooth-gnashing in the halls of Congress continues over the revelation that the Bush administration violated the black letter prohibition of engaging in warrantless surveillance, the final word in this debacle will obviously be issued, as it always is in Constitutional crises, by the judicial system. The political process will wind its painfully slow way towards the revelation of the truth about this breach of the law, with hearings that will be hamstrung by partisan bickering, posturing for the C-Span and nightly news show cameras and chest thumping by the usual apologists for an administration run amok.

The party in power cannot be expected, in spite of the courage of some of its members, notably Arlen Specter, (WaPo) to show the political will to hold the president accountable for his unlawful conduct. If it had that will, it would call for a special counsel to investigate the president’s secret program. (ACLU IMAGE). In the meantime, the truth will come out in the marble-lined federal courtrooms of our country, beginning with the one occupied by the court which was legislatively delegated the duty of overseeing the process of approving surveillance activities.

The FISA court has already been wracked by the scandal, with the resignation of one of its judges in protest over the revelations that its authority was disregarded with impunity. That court has scheduled a session at which it will be briefed by the administration about the whys and wherefores of its extra-judicial activities. (WaPo) The judges of the FISA court will want to know whether any of the warrants it did approve were tainted by the administration’s program of end-around surveillance, but also why the administration thought it could ignore the court and the law which created it.

Continued below:

Remember that, constitutionally, presidents only serve four year terms, but federal judges are appointed for life. In the battle of tenure, the judges win, hands down, and it is precisely because of the independence that gives them that they feel comfortable taking on the occasionally power hungry executive branch of our government. If it’s “not nice to fool Mother Nature,” LINK, believe me, it’s a lot less nice to try to fool a federal judge.

If the government cannot convince the FISA court that it had the authority to go around it, or worse, that it didn’t base any of its warrant requests on evidence tainted by warrantless surveillance, the administration faces the daunting prospect of having sanctions imposed on it by the court, including referrals to the Justice Department’s Office of Professional Responsibility (that department’s internal ethics monitor), contempt citations against the individual members of the executive branch and of the justice department who abused their authority, and even criminal charges, including perjury, for executing false affidavits required for the issuance of those tainted warrants.

The Court has already shown a lack of tolerance for government shenanigans when it severely criticized the FBI for filing misleading FISA applications in 75 cases in a case reported in 2002. ( And, as has already been foreshadowed, other courts will be asked to perform inquiries into the use of tainted evidence (NYT) from warrantless surveillance by defendants in a whole host of prosecutions, which may result in some being abandoned and even in convictions being overturned.

It is well to remember that previous abuses by presidential administrations were first brought to light, or at least their discovery facilitated, by the judicial process. Nixon’s downfall was catalyzed by the decisions of a courageous federal judge, “Maximum John” Sirica (WaPo), who rejected Nixon’s assertion that “executive privilege” immunized him from having to comply with a federal grand jury subpoena, a decision that was ultimately upheld by the Supreme Court (FindLaw)/ And of course, had it not been for the Supreme Court’s decision in Jones v. Clinton which allowed Paula Jones’ suit against the President to proceed, Clinton might not have ever had to deal with the meaning of the word “is.”

One of the most significant constitutional confrontations in history between the legislative and executive branches of government, and in many ways the spitting image of the one fomented by the current administration, occurred in 1952, when President Truman sought to nationalize the steel industry during the Korean War, claiming he had the “inherent” authority to do so as president and commander in chief, in what was an end-around the Taft-Hartley Act, Congress’ prescribed manner for resolving labor disputes. Congress had explicitly rejected a seizure provision when it considered that law (just as the current Congress rejected including domestic surveillance when it considered giving Bush the authority to use force against al Qaeda (WaPo). The Supreme Court disagreed with Truman, and in a strongly worded concurring opinion, Justice Robert Jackson uttered these now-prophetic words:

[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. [emphasis supplied]

Responding to the argument, similar to the one Bush makes (the “war on terrorism”), that Truman’s actions were in reaction to exigent circumstances (i.e., the Korean war), Justice Jackson dismissed that argument as follows:

[t]he opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power’s validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies-such as wages or stabilization-and lose sight of enduring consequences upon the balanced power structure of our Republic. [emphasis supplied]

So, let the games in the halls of Congress begin, but in the meantime, keep your eye on the halls of the federal judiciary, because that’s where the issue of the effect of and responsibility for extra-judicial, warrantless surveillance by Bush and his cronies will be decided first.


Mr. Aussenberg is an attorney practicing in his own firm in Memphis, Tennessee. He began his career in the private practice of law in Memphis after relocating from Washington, D.C., where he spent five years at the Securities and Exchange Commission as a Special Counsel and Trial Attorney in its Enforcement Division, during which time he handled or supervised the investigation and litigation of several significant cases involving insider trading, market manipulation, and management fraud. Prior to his stint at the S.E.C., he was an Assistant Attorney General with the Pennsylvania Department of Banking in Philadelphia and was the Attorney-In-Charge of Litigation for the Pennsylvania Securities Commission, where, in addition to representing that agency in numerous state trial and appellate courts, he successfully prosecuted the first case of criminal securities fraud in the state’s history.

Mr. Aussenberg’s private practice has focused primarily on investment, financial, corporate and business counseling, litigation and arbitration and regulatory proceedings. He has represented individual, institutional and governmental investors, as well as brokerage firms and individual brokers, in securities and commodities-related matters, S.E.C., NASD and state securities regulatory proceedings, and has represented parties in shareholder derivative, class action and multi-district litigation, as well as defending parties in securities, commodities, and other “white-collar” criminal cases.

Mr. Aussenberg received his J.D. degree from the University of Pittsburgh School of Law, and his B.A. degree in Honors Political Science from the University of Pittsburgh. Immediately following law school, he served as a Reginald Heber Smith Community Lawyer Fellow with the Delaware County Legal Assistance Association in Chester, Pennsylvania.

He is admitted to practice in Tennessee, Pennsylvania and the District of Columbia, before the United States Supreme Court, the Third and Sixth Circuit Courts of Appeals, and the United States Tax Court, as well as federal district courts in Tennessee, Arkansas, Mississippi and Louisiana. He is an arbitrator for the NASD, New York Stock Exchange and American Arbitration Association, has published articles (“Stockbroker Fraud: This Kind of Churning Doesn’t Make Butter”, Journal of the Tennessee Society of C.P.A.’s,; Newsletter of the Arkansas Society of C.P.A.’s; Hoosier Banker (Indiana Bankers Association), and been a featured speaker on a variety of topics at seminars in the United States and Canada, including: Municipal Treasurers Association of the United States and Canada, Ottawa, Canada; Government Finance Officers Association; National Institute of Municipal Law Officers, Washington, D.C. ; Tennessee Society of Certified Public Accountants, Memphis, TN; Tennessee Association of Public Accountants, Memphis, TN (1993)

Mr. Aussenberg has two children, a daughter who is a graduate of Columbia University and holds a Masters in Public Health from Johns Hopkins University and is currently a student at the University of Pittsburgh School of Law, and a son who is a graduate of Brown University and is working with a conservation organization in Marin County, California while he decides what to do with the rest of his life.

Mr. Aussenberg is an avid golfer whose only handicap is his game, an occasional trap shooter whose best competitive score was a 92, and an even less frequent jazz drummer.

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