The blog of Xeno, a slightly mad scientist
A divided Supreme Court halted a legal challenge Tuesday to a once-secret warrantless surveillance project that gobbles up Americans’ electronic communications, a program that Congress eventually legalized in 2008 and again in 2012.
The 5-4 decision (.pdf) by Justice Samuel Alito was a clear victory for the President Barack Obama administration, which like its predecessor, argued that government wiretapping laws cannot be challenged in court. What’s more, the outcome marks the first time the Supreme Court decided any case touching on the eavesdropping program that was secretly employed in the wake of 9/11 by the President George W. Bush administration, and eventually codified into law twice by Congress.
A high court majority concluded that, because the eavesdropping is done secretly, the American Civil Liberties Union, journalists and human-rights groups that sued to nullify the law have no legal standing to sue — because they have no evidence they are being targeted by the FISA Amendments Act. Some of the plaintiffs, which the court labeled “respondents,” are also journalists and among other things claimed the 2008 legislation has chilled their speech and violated their Fourth Amendment privacy rights.
The act, known as §1881, authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”
The FISA Amendments Act generally requires the Foreign Intelligence Surveillance Court to rubber-stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application.
“Yet respondents have no actual knowledge of the Government’s §1881a targeting practices. Instead, respondents merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a,” Alito wrote.
Joining Alito were Chief Justice John Roberts, and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas.
In dissent, Justice Stephen Breyer said standing should have been granted. He said that the spying, “Indeed it is a s likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.”
Signing the dissent were Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.
The legislation authorizing the spying was signed into law the first time in July 2008 and the ACLU immediately brought suit.
Then-senator and presidential candidate Barack Obama voted for the measure, though he said the bill was flawed and that he would push to amend it if elected. Instead, Obama, as president, simply continued the Bush administration’s legal tactics aimed at crushing any judicial scrutiny of the wiretapping program. Obama signed legislation in December that extended the measure’s effectiveness for another five years.
The case before the justices was a review of a surprising 2011 appellate court decision that reinstated the ACLU’s lawsuit, which the Obama administration asked the Supreme Court to dismiss. A majority of the justices agreed with the government’s contentions (.pdf) that the ACLU and a host of other groups don’t have the legal standing to bring the case because they have no evidence they or their overseas clients are being targeted.
Supreme BS. This illegal wiretapping is a big deal because a criminal government can use it to find out who knows about their crimes and then kill witnesses. Over the last 10 years, for example, hundreds of key witnesses who could have put away the real 9/11 conspirators could have been identified with these wiretaps and killed. No checks and balances = a totalitarian state (eventually). There are many strange facts around 9/11, but conspiracy or not, I’m with Andrew Jackson when he said:
“But you must remember, my fellow-citizens, that eternal vigilance by the people is the price of liberty, and that you must pay the price if you wish to secure the blessing. It behooves you, therefore, to be watchful in your States as well as in the Federal Government.” — Andrew Jackson, Farewell Address, March 4, 1837