Judge Boasberg’s hypocrisy

OPINION:

Congress has mastered the art of sending toothless letters that draw media attention without accomplishing anything. That became clear as Judge James “Jeb” Boasberg blew off a polite request that he come and tell the Judiciary Committee why his signature appears on court orders concealing the unprecedented spying campaign against Republican lawmakers known as Arctic Frost.

Senate Judiciary Committee Chairman Charles E. Grassley and House Judiciary Committee Chairman Jim Jordan pointed out in their missive to the District’s chief district court judge that federal law explicitly prohibits nondisclosure orders that prevent phone companies from advising senators that the executive branch is snooping on their records. His honor signed them anyway.

“Verizon informed our offices that they believed they were barred from notifying affected Members due to the NDOs you approved, thus preventing the Senate from intervening in the issuance of the subpoenas and addressing these concerns prior to any harm occurring,” the unhappy solons wrote.

This intrusion affected at least eight senators and several congressmen who weren’t accused of committing a crime. Judge Robert J. Conrad Jr., director of the Administrative Office of the U.S. Courts, responded on Judge Boasberg’s behalf.

“Applications for NDOs typically do not attach the related subpoena; rather they identify the subject accounts only by a signifier — e.g., a phone number. As a result, NDO applications would not reveal whether a particular phone number belonged to a member of Congress,” Judge Conrad noted.

So, judicial approval amounts to a blind signature on a sheet of paper containing meaningless numbers and boilerplate text supplied by the Justice Department. No particularized justification is offered or required, despite the constitutional imperative that search warrants be based on probable cause.

This broken system was created by Congress, not Judge Boasberg. Despite warnings from whistleblowers such as Edward Snowden that warrantless spying capabilities were being abused on a colossal scale, senators and congressmen looked the other way. They always reauthorize bulk surveillance, claiming “safeguards” will protect the innocent.

None of that excuses Judge Boasberg’s failure to appear before the committee, resulting in the postponement of a hearing planned for this past Wednesday. Judge Conrad said “it would encroach upon the separation of powers and the independence of the Judiciary for judges to be required to explain their deliberative processes in reaching judicial decisions.”

Yet Judge Boasberg demonstrates no such appreciation for the separation of powers when he orders military planes filled with illegal aliens to turn around in midflight. He compels administration officials to appear before him and explain their deliberative processes in failing to obey.

Although his superiors on the Court of Appeals and Supreme Court have found he lacks jurisdiction, Judge Boasberg presses forward, saying last month that, “the Court is not prepared at this juncture to terminate its inquiry. Instead, it must determine whether [Homeland Security] Secretary [Kristi] Noem or anyone else should be referred for potential contempt prosecution.”

The previous administration, backed by the federal bench in the District of Columbia, imprisoned former presidential aides Peter Navarro and Steve Bannon when they objected to testifying before Congress on separation of powers grounds.

Judge Boasberg should be held to the same standard, but that can happen only if members of Congress deliver a subpoena and enforce it through the sergeant-at-arms and, ultimately, impeachment. Otherwise, the courts will step in to shield one of their own.

His testimony, however, is critical for the public to understand how the surveillance state’s “safeguards” are about as meaningful as a polite congressional letter.