The Supreme Court ruled yesterday and dealt another blow to public interest lawsuits by rejecting the standing of civil liberties groups and citizens to challenge the Obama Administration’s surveillance programs. President Obama has long been criticized for his opposition to such lawsuits and his Justice Department has continued a successful attack on the ability of citizens to challenge the unconstitutional actions of their government in the war on terror. The 5-4 opinion by Justice Samuel A. Alito Jr. insulates such programs from judicial review in yet another narrowing of standing rules.
Alito rejected the ability of an array of journalists, lawyers and human rights advocates to challenge the constitutionality of the 2008 law allowing secret surveillance without meeting constitutional standards of probable cause. Alito simply said that the parties could not prove that they were subject to surveillance — since the Obama Administration has classified such evidence — and insisted that their fears and precautionary actions are merely efforts to “manufacture standing by incurring costs in anticipation of nonimminent harms.”
Alito wrote that just because no one may be able to challenge the law is no reason to recognize standing — a position that guts the separation of powers principles underlying judicial review. He also cites to the secret FISA as judicial review — a truly laughable proposition. I have been in that court as a NSA legal intern and the thought that it constitutes any real form of review is a preposterous notion. I have written and testified on this court in the past.
In dissent, Justice Breyer correctly noted that “Several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that Government, acting under the authority of §1881a, will intercept at least some of the communications just described.”
Alito and his colleagues had to work hard bar these constitutional claims from review. It is a signature for Alito who has had a consistent and disturbing record of yielding to police powers. Absent a religious practice or gun claim or environmental claim where Alito turns on the government, he is the very symbol not of blind justice but the blind justice on government abuse.
The decision is Clapper v. Amnesty International, No. 11-1025, and it is a true nightmare for civil liberties. Alito and his colleagues have essentially guaranteed that even blatant unconstitutional programs can be insulated from judicial review by allowing the very same accused Administration to classify the evidence needed to bring any lawsuit.
Here is the opinion: 11-1025_ihdj
Source: NY Times
ACLU’s Press Release:
Ruling Shields Surveillance Program from Judicial Review
http://www.aclu.org/national-security/supreme-court-dismisses-aclus-challenge-nsa-warrantless-wiretapping-law
Excerpt:
“It’s a disturbing decision. The FISA Amendments Act is a sweeping surveillance statute with far-reaching implications for Americans’ privacy. This ruling insulates the statute from meaningful judicial review and leaves Americans’ privacy rights to the mercy of the political branches,” said ACLU Deputy Legal Director Jameel Jaffer, who argued the case before the justices on October 29, when the court stayed open despite the approach of Hurricane Sandy, which shut down the rest of the federal government.
“Justice Alito’s opinion for the court seems to be based on the theory that the FISA Court may one day, in some as-yet unimagined case, subject the law to constitutional review, but that day may never come. And if it does, the proceeding will take place in a court that meets in secret, doesn’t ordinarily publish its decisions, and has limited authority to consider constitutional arguments. This theory is foreign to the Constitution and inconsistent with fundamental democratic values,” Jaffer said.
Supreme Court shields warrantless eavesdropping law from constitutional challenge
by Glenn Greenwald
http://www.guardian.co.uk/commentisfree/2013/feb/26/supreme-court-eavesdropping-law-doj-argument?commentpage=1
Excerpt:
In sum, the US government has constructed a ubiquitous Surveillance State. It has repeatedly demonstrated that it intends to eavesdrop on the communications of exactly the people who have brought this lawsuit. To prevent them from suing on the ground that the US government’s secrecy precludes them from proving with certainty that they are being targeted is to remove the US government’s surveillance actions from the rule of law and the constraints of the Constitution.
But that is what the Obama DOJ just succeeded in convincing the five right-wing members of the Court to do: allow it to conduct its Surveillance State beyond the rule of law. What’s the point of having a Fourth Amendment that bars unreasonable searches and seizures without probable cause warrants if the US government simply shrouds its unconstitutional eavesdropping with so much secrecy that it prevents anyone from challenging the legality of what it is doing?
The supreme irony here is that when Obama supported this 2008 eavesdropping law, it sparked intense anger among his own supporters as he ran for president. To placate that anger, he vowed that, once in power, he would rein in the excesses of this law that he oh-so-reluctantly supported. He has done exactly the opposite. He just succeeded in pressuring the Congress, with heavy GOP support, to extend this eavesdroppiong law for five years without a single reform. And now his Justice Department has used the five right-wing justices to completely immunize the law from judicial review (the only way the law could now be challenged is from a handful of extremely unlikely situations, such as if the US government criminally prosecutes the foreign clients and sources of these plaintiffs using information they obtained from the warrantless eavesdropping, and even then, the ability to challenge the law’s constitutionality is far from certain).
When the new 2008 FISA eavesdropping law was passed, all sorts of legal scholars debated its constitutionality, but it turns out that debate was – like the Constitution itself – completely academic. As both the Bush and Obama administrations have repeatedly proven, they are free to violate the Constitution at will just so long as they do so with enough secrecy to convince subservient federal courts to bar everyone from challenging their conduct. -Glenn Greenwald
Reblogged this on herlander-walking and commented:
SCOTUS pours a big cup of STFU to civil liberties groups.
And we can thank the 9/11 false flag operation for getting the War on Terror cranked up.
Some right-wingers would say that 9/11 was an inside job that was worth every penny it cost. Larry “PULL it” Silverstein would surely agree.
Why couldn’t the courts issue an injunction to turn over all “unconstitutional” searches to the judge so he could notify those citizens? That would be proof of legal standing.
But the common thread is that all of these cases are being thrown out even before the courts reach the merits. And that is a disturbing thing that ought to be of concern to everybody. -Jameel Jaffer, deputy legal director, ACLU
ACLU Blasts Supreme Court Rejection of Challenge to Warrantless Spying Without Proof of Surveillance
http://www.democracynow.org/2013/2/27/aclu_blasts_supreme_court_rejection_of
NERMEEN SHAIKH: Well, one of the plaintiffs in the case, author and journalist Chris Hedges, wrote about the decision that it’s a very depressing one, “but one that has become routine in a court system that when faced with what the government insists are matters of national security writes lengthy opinions about why the courts cannot defend the rule of law.” Can you talk about how this decision fits into a wider range of decisions made recently?
JAMEEL JAFFER: Well, I think that Chris Hedges is right, that there is a broader pattern here in which the courts are abdicating their role under our constitutional system. They are supposed to be ensuring that the government’s national security policies are consistent with the Constitution. Instead what’s happening is many of these challenges are being thrown out at the threshold. Different—there are different reasons. Sometimes it’s standing. Sometimes it’s state secrets. Sometimes it’s immunity. But the common thread is that all of these cases are being thrown out even before the courts reach the merits. And that is a disturbing thing that ought to be of concern to everybody.
(Jameel Jaffer is the deputy legal director of the American Civil Liberties Union and a fellow at the Open Society Foundations. He argued the warrantless wiretapping case on behalf of the plaintiffs before the U.S. Supreme Court.)
Odtained via FOIA request: The NSA’s (supreme) oath of office “to preserve, protect and defend the Constitution of the United States..”. We expect our doctors to honor their oaths, our attorneys to honor attorney-client privilege and our spouse to honor their vows so why do national security agencies get a pass? When dealing with super-secret matters that involve innocent bystanders and few checks & balances – isn’t loyalty king?
This decision, in plain English:
A 1978 federal law gives the federal government authority to engage in eavesdropping to gather intelligence information from foreign nations, without targeting the communications of Americans. In 2008, in the wake of the government’s stepped-up efforts to monitor threats of terrorism, Congress broadly expanded that power, which is carried on with the approval of a secret court that meets in the Justice Department in Washington.
After that expanded version of the law went into effect, a group of lawyers with clients who have figured in terrorism cases, joined by a group of journalists who have overseas sources in countries where terrorism may be ongoing, and by human rights researchers looking for people subjected to torture in secret prison, filed a lawsuit in federal court. They contended that the much greater monitoring almost certainly being done with the expanded eavesdropping power very likely will pick up some of their conversations or electronic exchanges.
They could not prove that they actually were targets of such surveillance, because the program is surrounded in the deepest form of secrecy to protect classified information.
They argued that, because of their belief they were likely to be monitored, they had to take steps to protect their confidential contacts, so they changed the way they provide legal advice, perform journalistic chores, or carry out research, and they did so sometimes at considerable expense. That, they argued, was the kind of legal “injury” that gave them a right, under the Constitution, to challenge the constitutionality of the program.
A federal judge in New York City ruled that they had not shown that they would be targeted. A federal appeals court in New York, however, ruled that they had shown a sufficient likelihood of being overheard, so their case could go to trial.
The Supreme Court, dividing five to four, on Tuesday upheld the government’s argument that the claims of the challengers that they were likely to be targets of surveillance were based too much on speculation and on a predicted chain of events that might never occur, so they could not satisfy the constitutional requirement for being allowed to sue.
Justice Breyer’s dissenting opinion said that the Court should have used a standard of “probabilistic injuries” to determine “standing.” If that were used in this case, the dissenters said, the challengers would have met it, and their case could have gone ahead to trial.
– See more at: http://www.scotusblog.com/2013/02/opinion-recap-global-wiretap-challenge-thwarted/#sthash.TdmAdzoj.dpuf
I read this yesterday…. If you don’t have injury you don’t have standing…. I hear one of Obamas appointments switched at the last moment…once they had a majority…
What’s interesting is the DOJ defended this suit… I suppose when you speak out of both sides of your mouth you can please everyone….
Now, who does holder work for again….
What Gene H said and The Germ Theory of Government.
I don’t think Matthew Carmody understands what treason is.
Under the Supremacy Clause [Article Six] it is the top duty of every judge and justice to uphold the U.S. Constitution (which includes the Bill of Rights). The federal courts up to the Supreme Court are supposed to “reject” legislation by Congress and the state legislatures that is blatantly unconstitutional. If you read the Fourth Amendment as written there is a real distortion going on here, if the constitution is fundamentally flawed then you amend it – but you don’t disregard it.
I think of Alito and Thomas and Scalia and I just shake my head. This is a horrible decision that basically states that if the Executive branch decides that it is a “national security” issue then anything goes. It will take Congress to change the law because the Supremes won’t if Presidents keep nominating people like Alito and Thomas and Scalia.
We’ve got those great Democratic patriots, Al Gore and John Kerry, to thank for this continuous assault on our country. Neither one of them had the balls to challenge the traitors who usurped our electoral system.
Gore said he didn’t want to precipitate a constitutional crisis. Really?? What does he call what we’re experiencing these past 12 years?
Another bad decision could be coming from the majority…..”From the Shelby County argument
Following through on the deep constitutional concerns stated in its prior Northwest Austin decision, a majority of the Court seems committed to invalidating Section 5 of the Voting Rights Act and requiring Congress to revisit the formula for requiring preclearance of voting changes. The vote seems quite likely to be five to four. The more liberal members pressed both the narrow argument that an Alabama county was not a proper plaintiff because it inevitably would be covered and the broader argument that there was a sufficient record to justify the current formula. But the more conservative majority was plainly not persuaded by either point. It is unlikely that the Court will write an opinion forbidding a preclearance regime. But it may be difficult politically for Congress to enact a new measure. More analysis soon.
– See more at: http://www.scotusblog.com/2013/02/from-the-shelby-county-argument/#sthash.Oh8PzBem.dpuf
All the republican appointees voted for this ruling. Obama’s and Clinton’s appointments voted against it. We need one of five to retire.
I didn’t think this SCOTUS could come up with a worse decision than Citizens United.
I was wrong. However, I am not surprised. This is what happens when the highest court in the land is stacked with fascists.
Has there ever been a judicial crisis like this in American history? Like Jonathan Turley’s “Try 19” idea of a larger court. Will the next generation know how to fix it? They know America as the torturers and assassins.