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
It is time for a Revolution.
Revolt and then replace SCOTUS, The President and Congress.
The US Constitution and the Bill of Rights is not the problem. The people running our govt are the problem. Lets fix the problem.
Mespo,
Since when does Stari Decisis mattered to the US Sct?
Any U.S. citizen, by virtue of that citizenship alone, should be conferred standing to challenge any action of his government as unconstitutional. That’s not busybodiness. Rather, it’s the essential prerogative of a free society to enforce public rights through private actions. That was also the law of this nation until the misguided cases of Massachusetts v. Mellon, 262 U.S. 447 (1923) and Fairchild v. Hughes, 258 U.S. 126 (1922).
Any U.S. citizen, by virtue of that citizenship alone, should be conferred standing to challenge any action of his government as unconstitutional. That’s not busybodiness. Rather, it’s the essential prerogative of a free to society to enforce public rights through private actions. That was also the law of this nation until the misguided cases of Massachusetts v. Mellon, 262 U.S. 447 (1923) and Fairchild v. Hughes, 258 U.S. 126 (1922).
The idea of standing allows the government to openly continue to violate civil rights, until someone is proved to have standing. If the government is violating the Constitution, it should not matter if a Martian is the person who brings the suit. There are areas of the Constitution that the government can violate that would would probably not technically violate, even potentially, the civil rights of anyone. Do they get a free pass to do so because no one could have standing? Time to end the issue of standing.and forward suits based if there is a Constitutional violation.
Wyden promises to continue fight to shed light on warrantless searches despite Supreme Court decision
by Charles Pope, The Oregonian
February 26, 2013 at 3:58 PM
http://www.oregonlive.com/politics/index.ssf/2013/02/wyden_promises_to_continue_fig.html
Excerpt:
The battle over wiretaps is only one source of tension between Wyden and the White House. He has also demanded that the Administration provide to the Senate Intelligence Committee the legal rationale for using drones to target and kill U.S. citizens overseas who are allied with terror organizations.
President Barack Obama eventually assured Wyden during a private phone conversation the legal documents would be provided. Wyden, who is a senior member of the Intelligence Committee, suggested he might hold up the nomination of John Brennan to be CIA director.
Despite Obama’s promise on Feb. 6, the documents have yet to be provided.
“I don’t believe that the committee can carry out its charge to do vigilant oversight without any and all legal opinions,” a frustrated Wyden said Tuesday.
Wyden said the Justice Department, rather than the President, is at fault for the delay. And while he would not say if would block a confirmation vote on Brennan, Wyden said the information is critical.
“The administration, particularly the Justice Department, has not fulfilled its commitment,” he said. “The committee must have those legal opinions before the vote.”
In dismissing the case, the Supreme Court said the groups could not prove that the government would monitor their conversations along with those of potential foreign terrorist and intelligence targets. Wyden and other critics say communications of innocent and unknowing U.S. citizens is swept up as part of the program.
Responding to the court’s decision, Wyden said: “If Americans have no standing in federal court to challenge the potential misuse of the FISA statute then it is up to Congress to get the information it needs to oversee these incredibly powerful authorities. Without congressional oversight there is no way to be sure that the privacy and security of Americans are being protected.”
Wyden strenuously – but unsuccessfully – contested the FISA renewal last year arguing that the government’s broad and largely unchecked power to eavesdrop on foreigners suspected of terrorism inadvertently swept of reams of email, text and phone conversations involving Americans.
During debate last year Wyden pushed for the government to acknowledge that the communications of Americans were included in the massive tide of information that flowed to intelligence analysts.
Wyden came close on only one question.
“On the matter where got the most votes, the question was, should the government give a ‘yes’ or ‘no’ answer to whether an estimate exists about how many law abiding people have had their communications swept up,” he said Tuesday.
“Does and estimate exist? That’s the question I want answered,” he said. “We’re going to win this. The country understands that it is possible to take the fight to al-Qaeda, take the fight to terrorists and not sacrifice our values.” (end of excerpt)
http://thecaucus.blogs.nytimes.com/2008/07/09/blogtalk-obamas-fisa-vote/ Obama voted for F.I.S.A in 2008. Hillary Clinton voted against it………
“Yet typically in the national security field (and to a striking degree even in corporate and private associations without a formal apparatus of secrecy) even the “weakest links” do not break. No one tells. -Daniel Ellsberg
Secrecy and National Security Whistleblowing
by Daniel Ellsberg on January 8, 2013
http://www.ellsberg.net/archive/secrecy-national-security-whistleblowing
“Since wrong-doing virtually always requires both secrecy and lies, and further secrets and lies to protect the secrets and lies, the wrongful operation-especially in a regime that approaches democracy–is commonly highly vulnerable to a breach of secrecy by any one of the many who share the secret. Yet typically in the national security field (and to a striking degree even in corporate and private associations without a formal apparatus of secrecy) even the “weakest links” do not break. No one tells.
And this is true even as important laws are being knowingly violated, or when many lives have been and more will be harmed by ignorance of the information being withheld. Think of the many situations in which whistleblowing was either wholly absent or very belated: the internal buildup to the Vietnam and Iraq wars; the tobacco industry; Vioxx; the accounting scandals of Enron or Worldcom, with its widespread effects on retirement accounts; child abuse by Catholic priests and cover-up by bishops; NSA warrantless wiretaps and White House-directed torture and kidnapping, after 9-11.” – Daniel Ellsberg
The U.S. gov is sitting on a whopper of a secret. When the truth sees the light, as it inevitably will, it will be a very sad time for America, to say the least.
Yep, Swarthmore mom. Feingold had it right.
“Congress Needs to See Secret Court Orders, Feingold Argues
By Ryan Singel
01.24.08
12:51 PM
russell feingold wisconsin senatorSenator Russ Feingold (D-Wisconsin) introduced an amendment that would require the Administration to tell Congress when the secret foreign intelligence court interprets wiretapping law in court rulings and wiretap orders, and to provide the administration’s filings in the case so that the court’s order can be understood.
Currently the government must turn over court rulings that significantly interpret wiretap law, but recent events show that the court sometimes makes significant interpretations of the law when issuing wiretap orders. The administration is not required to turn those – or its pleadings — over to the Congress’s Intelligence committees. The bill would affect all orders issued over the previous five years.
“If the FISA court makes a significant interpretation of law I think Congress should know about it, and congress can’t know to pass further legislation without knowing how the court interprets the law,” Feingold said.
Feingold presented the bill as common sense.
But that’s not how the administration sees it.
After a short break, Senator Kit Bond (R-Missouri) — the ranking Republican on the Intelligence Committee — rose in opposition saying that the Intelligence committee and the Justice Department thinks that letting Congress see those orders would compromise sources and methods. That he said could destroy the intelligence community and led to the deaths of sources who help the U.S.” Feingold was on it in 2008. Hope he decides to run again. Polls show he could beat the tea bagger Johnson.
“This is a classic Catch-22: since the surveillance is secret and no one can say for certain that their calls, e-mails and other communications have been or will be monitored, by the court’s logic no one will ever be able to show standing to bring a lawsuit.” -NY Times editorial, yesterday
Editorial
Unbridled Secrecy
Published: February 26, 2013
http://www.nytimes.com/2013/02/27/opinion/unbridled-secrecy-wins-at-the-supreme-court.html
“The Supreme Court severely damaged the rule of law in its decision on Tuesday to disallow a lawsuit challenging the federal law that permits broad, secret surveillance and interception of international communications involving Americans. The suit, brought by lawyers, journalists and human rights activists, charged that the 2008 amendments to the Foreign Intelligence Surveillance Act violate their rights to privacy and free speech.
The majority ruled that the plaintiffs did not have standing to sue because they cannot show they have been harmed by the surveillance law. This is a classic Catch-22: since the surveillance is secret and no one can say for certain that their calls, e-mails and other communications have been or will be monitored, by the court’s logic no one will ever be able to show standing to bring a lawsuit. “
Joy,
The Obama administration should have never fought this ruling and turn over all of the documents requested…. But hey, Obamas for the people…
“Alito simply said that the parties could not prove that they were subject to surveillance — since the Obama Administration has classified such evidence…”
“Alito wrote that just because no one may be able to challenge the law is no reason to recognize standing…”
*****
A Judicial Catch 22?
Whatever happened to IMPEACHMENT of scotus “justices?” Talk about “activist judges” – this is a daymare – you can’t wake up from this.
http://www.aclu.org/national-security/secrecy
“American democracy has a disease, and it’s called secrecy. Since 2001 the United States Government has spent well over a trillion dollars attempting to secure the nation from terrorist attacks and other physical threats to the well-being of the American people. But the excessive secrecy that hides how the government pursues its national security mission is undermining the core principles of democratic government and injuring our nation in ways no terrorist act ever could.”
The Supreme Corporate Court Court strikes again. Aided by the DOJ the the Court has given this administration and any that follows the right to do anything in secret. Isn’t that special. Why does the Supreme Corporate Court hate the American People, the real human people that is.
I was told was: exigent conditions now prevailed, we essentially can do anything. We opened up Pandora’s box. We’re going to turn the United States of America into the equivalent of a foreign nation for the purpose of a—of dragnet, blanket electronic surveillance. -Thomas Drake, NSA Whistleblower
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
AMY GOODMAN: We also interviewed Thomas Drake, another National Security Agency whistleblower, on Democracy Now!
THOMAS DRAKE: The critical thing that I discovered was not just the massive fraud, waste and abuse, but also the fact that NSA had chosen to ignore a 23-year legal regime, which had been established in 1978, called the Foreign Intelligence Surveillance Act, with a Foreign Intelligence Surveillance Court, and which, at NSA, during the time that I was not only at NSA but also in the military flying on RC-135s overseas during the latter part of the Cold War, it was a contract, the one thing you did not do. It was the prime directive of NSA. It was the—the—First Amendment at NSA, which is, you do not spy on Americans—
AMY GOODMAN: And what did you find?
THOMAS DRAKE: —without a warrant. I found, much to my horror, that they had tossed out that legal regime, that it was the excuse of 9/11, which I was told was: exigent conditions now prevailed, we essentially can do anything. We opened up Pandora’s box. We’re going to turn the United States of America into the equivalent of a foreign nation for the purpose of a—of dragnet, blanket electronic surveillance.
AMY GOODMAN: NSA former employee, Thomas Drake, was prosecuted. He was a whistleblower. And before that, William Binney. Jameel Jaffer, your response? And also, can you talk about President Obama himself, who, as senator in 2008, voted for the measure and has recently signed legislation in December extending the FISA amendment another five years?
JAMEEL JAFFER: Right. Well, when we filed this case, we filed it in 2008 under the Bush administration, and so the arguments we were facing in the district court were arguments developed by Bush administration attorneys. But the case, you know, has been in the courts now for five years, and over the course of that time, obviously, the Bush administration has been replaced by the Obama administration, but the arguments have remained the same. The Obama administration lawyers have adopted all of the arguments that the Bush administration made to try to shield this statute from judicial review.
And I think it’s important to recognize the limited proposition we were making. The case before the Supreme Court was not about whether this statute is constitutional or not. We hadn’t reached that stage. The only question before the Supreme Court is—or was: Should the courts actually evaluate whether this statute is constitutional or not? And this five-to-four decision yesterday was a decision that the court should not evaluate that decision. And that’s really a disturbing thing, that, you know, maybe there’s room for reasonable disagreement about whether a statute like this is necessary or lawful or constitutional, but those arguments should be heard in a court. The courts have a role to play in deciding whether this kind of surveillance is constitutional or not, and it’s very troubling that the courts are refusing to play that role.
http://www.wired.com/threatlevel/2013/02/scotus-surveillance-challenge/
“In dissent, Justice Stephen Breyer said standing should have been granted. He said that the spying, “Indeed it is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.””
5-4 independent judiciary, (&%#^*)&
Courts Won’t Be Reviewing Legality of Counterterrorism Programs Anytime Soon
Posted on February 26, 2013 by emptywheel
http://www.emptywheel.net/2013/02/26/courts-wont-be-reviewing-legality-of-counterterrorism-programs-anytime-soon/#more-33631