by Eileen | 9:40 pm, February 26, 2013 | Comments Off
In a 5-4 ruling with Alito writing for the majority, SCOTUS upheld warrantless wiretaps of Americans, provided the government states it has a good faith belief the citizen is speaking to a foreign national involved in terrorism.
Plainly, provided they can keep a straight face while claiming they thought your pen pal was an al’Qaeda mastermind, the U.S. Government may now surveil you and you have no recourse.
In short, the facts are these. In 1978, partially as a response to Watergate and other Nixonian excesses, Congress passed FISA, the Foreign Intelligence Surveillance Act. FISA was supposed to apply checks and balances, due process, and probable cause to surveillance. In short order, it became wildly corrupted, captured and remade into a surveillance tool rather than a check on the state-run Panopticon.
The 9/11 attacks became the justification for an orgy of new spying and surveillance programs, including Stellar Wind. An NSA project begun at the behest of Bush 43, Stellar Wind was (and is) warrantless, dragnet surveillance of any and all communications that crossed U.S. based networks. In 2008, under the FISA Amendments Act (FAA), Stellar Wind was retroactively legalized.
All this was challenged under Amnesty International et al v. Clapper, brought by the ACLU almost immediately after FAA was passed. A coalition of human rights organizations brought the case, arguing that the FISA Amendments Acts allows the state to eavesdrop on conversation between attorneys working in the U.S. and their overseas clients, violating privilege and due process.
When FAA passed in the summer of 2008, Barack Obama supported it in the Senate, a stark about-face from his previous position, rather easily explained as the shrewd calculation of a man who was safe to think of himself as the next President and was planning for what powers would be available to him. His explanation of his vote was that FAA was the least objectionable compromise, though anyone who believed suck balderdash in 2008 would be hard pressed to persist in seeing the President as a friend of civil liberties who regretfully signs the necessary bills.
SCOTUS’ ruling dismissing the case at the highest level is, in addition to being an act of puerile obeisance to the Obama Administration’s wishes, takes a chilling line of reasoning.
The high court echoed lower courts in its opinion. Attorneys and human rights organizations who suspect they and their clients are being surveiled by the U.S. government can’t properly claim standing to bring the case because they can’t prove they are under surveillance. And they can’t prove they are or are not being surveiled because the U.S. government does not need to reply to any requests for information about its surveillance. You can’t do anything about being spied on unless you can prove that it;s happening, and the people who spy on you are allowed to lie to you about what they’re doing.
Prospect identified the crux elegantly, writing:
The fact that journalists and lawyers don’t know if they’re being wiretapped without a warrant is the problem, not a reason that the government should not face constitutional scrutiny.
One thing worth mentioning is that SCOTUS has refused to make an actual Constitutional ruling about the 4th Amendment viability of warrantless surveillance, which is the grounds on which the case was brought, or on the also salient 1st and 5th Amendment aspects of the Clapper case. Instead, the nine wise souls held that it doesn’t matter whether or not what the government is doing passes Constitutional muster, only whether or not the government can lie convincingly about its warrantless surveillance.
It is convenient for the Executive to engage in warrantless wiretaps and blanket surveillance, therefore, there is no reason to assess the legality.
The court also wrote, in the majority opinion, that the entire case was “highly speculative fear“, concerning what the U.S. might do in the future, a spectacularly dishonest evasion of the considerable evidence that the U.S. government is already knowingly eavesdropping on privileged attorney-client communications when one party is outside the U.S.
Has FISA been systematically abused? Is FAA unconstitutional? Is the Executive branch, operating largely through the NSA, engaged in arbitrary and abusive usurpation of its properly delegated powers? These actually are just the things the Judiciary prides itself on examining. Instead, we’ve seen, today, a shameful acquiescence to an unchecked and irrational Executive.
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