Supreme Court Rejects Challenge To Secret Surveillance


The U.S. Supreme Court
The U.S. Supreme Court

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.”

SAlitoAlito 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

85 thoughts on “Supreme Court Rejects Challenge To Secret Surveillance”

  1. Dave, “Liberals and Conservatives want big govt but only their idea of big govt, well sorry big govt is bad news no matter which direction you think is noble.”

    Obama has been shrinking the government considerably. Just keeping the government the same size would help the economy tremendously. We came out of past recessions by the government getting bigger, not smaller. Obama is doing what the conservative right wing wants done. The Rs would have a hard time doing it but he gets away with it b/c he’s a D.

  2. Great link Swarthmore! It is interesting to see who challenges the great and powerful OZ!

  3. Hey the Scotus voted in favor of secrecy? Who knew, they allowed Obamacare that draconian and morally bankrupt(and financially) piece of garbage through, why not this. The Patriot Act is legal, NDAA appears to remain legal, this court has morphed into Authoritarians by and for Authoritarians. Constitution be damned, we’ll interpret it with any so called clause that fits our narrative. Liberal or Conservative justice is almost irrelevant anymore, everything is justified under some naive progressive idea of the constitution.
    Liberals and Conservatives want big govt but only their idea of big govt, well sorry big govt is bad news no matter which direction you think is noble.

  4. Rachel Maddow’s discussion of Scalia’s remarks included video of extremely long lines of mostly Blacks waiting to vote in the last election.

  5. OT Breaking News
    Bradley Manning Pleads Guilty

    By Ed Pilkington, Guardian UK

    28 February 13

    Bradley Manning has pleaded guilty to having been the source of the massive WikiLeaks dump of US state secrets, though he has denied the most serious charge against him that he “aided the enemy” that could see him languishing in military prison for the rest of his life.

    Through his lawyer, David Coombs, the soldier pleaded guilty to 10 lesser charges that included possessing and willfully communicating to an unauthorised person all the main elements of the WikiLeaks disclosure. That covered the so-called “collateral murder” video of an Apache helicopter attack in Iraq; some US diplomatic cables including one of the early WikiLeaks publications the Reykjavik cable; portions of the Iraq and Afghanistan warlogs, some of the files on detainees in Guantanamo; and two intelligence memos.

    These lesser charges each carry a two-year maximum sentence, committing Manning to a possible upper limit of 20 years in prison.

    Manning also pleaded not guilty to 12 counts which relate to the major offences of which he is accused by the US government. Specifically, he pleaded not guilty to “aiding the enemy” – the idea that he knowingly gave help to al-Qaida and in a separate count that by causing secret intelligence to be published on the internet he knowingly made it accessible to the enemy.

    He also denied that at the time he made the transmission of information to WikiLeaks he had “reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation”.

    With Manning having pleaded not guilty to these overarching charges, the prosecution is now almost certain to press ahead to a full court-martial which is currently set for 3 June. The judge has indicated that the trial could run for 12 weeks, although Manning’s guilty plea to the lesser charges may short-circuit the process as the government will no longer have to prove that he acquired and communicated the trove of classified material to WikiLeaks.

    Manning confirmed that he wishes the trial to be conducted by the judge, Colonel Denise Lind, presiding in the case sitting alone. There will be no military equivalent of a jury.

    Lind made clear that she will reserve her judgment on whether or not to accept Manning’s guilty pleas until a later date. She has no power to influence the charges other than to ensure that they are consistent with the law – which she has already done.

    She does, however, have the responsibility to ensure that Manning has made his plea in full knowledge of what it means for his future, and voluntarily with no coercion.

    They will now spend the rest of the day in deliberations designed to meet that responsibility. Lind has said that Manning will be allowed to read out a statement, believed to run to 35 pages, that explains his decisions and may reveal his thinking about what he did and why he did it in transmitting such a huge mountain of classified material to WikiLeaks.

  6. OT:

    L.A. to ask high court to overturn ruling on homeless belongings

    City cites public health threat in seeking the reversal of a lower-court ruling barring random removal and destruction of unattended personal property.,0,5722333.story


    Stan Goldman, a Loyola Law School professor, said it may be a long shot to ask the Supreme Court to weigh in, given how few cases it has taken up in recent years. But he said: “History has shown that the conservatives on the Supreme Court like nothing better than reversing liberal 4th Amendment decisions out of the 9th Circuit.”

  7. ” For a quarter-century, Antonin Scalia has been the reigning bully of the Supreme Court, but finally a couple of justices are willing to face him down.

    As it happens, the two manning up to take on Nino the Terrible are women: the court’s newest members, Sonia Sotomayor and Elena Kagan.”

  8. Wondering if Mr. Turley would like me to send him the Writ of Certiori i filed and the documents released to me on this subject and has the Kahoonas to revisit this landmark case?

  9. I am wondering if the FBI is still using wiretaps at the supreme court to intimidate and influence opinions that limit their actions against average Amerikan citizens as was reported on the Geraldo program and in a book by Alexander Charns…This is bigger than watergate and we need a complete Senatorial and Congressional investigation of this matter and Robert Mueller should have to testify
    on this….This writer filed a suit on this subject in 1996…w.voinche v. FBI, 940 F.Supp.323(DDC 1996)and forced the fBI to release about 200 pages on this subject and filed a Writ of Certiorari…but the Supreme Court would not hear the case or force the fbi to release all of the documents on this subject…Is the FBI trying to intimidate the major branches of government)makes one wonder if we now have government by fbi fiat and are moving toward Orwellian Fascism????

  10. Jonesy:

    I care far less what a man earns financially than what he does. If you want an egoless, pauper traversing the countryside doing good read the New Testament or Don Quixote. If you want reality:

    You don’t fight entrenched soulless financial interests without a war chest.

    And as for our sanctimonious — but accomplished — Stephen B. Bright, you really need to add that he is the long term director of the Southern Center for Human Rights (SCHR). The SCHR competes for public donations with the SPLC. Professional jealousy is never very pretty and ego is a universal malady.


    The church of Morris Dees
    How the Southern Poverty Law Center profits from intolerance

    The Southern Poverty Business Model

    Many of you out there have no doubt received in the mail desperate cries for help from the Southern Poverty Law Center (SPLC), the do-gooder group that does very little good considering the vast sums of money it raises. But before you pull out your checkbook, make sure to read the following letter that Stephen Bright, an Atlanta-based civil rights and anti-death penalty attorney, recently wrote in declining an invitation to an event that honors Morris Dees, head of the SPLC.

    Kenneth C. Randall, Dean and
    Thomas L. McMillan, Professor of Law
    School of Law
    University of Alabama
    249 Law Center
    Box 870382
    101 Paul W. Bryan Drive
    Tuscaloosa, AL 35487-0382

    Dear Dean Randall:

    Thank you very much for the invitation to speak at the law school’s commencement in May. I am honored by the invitation, but regret that I am not able to accept it due to other commitments at that time.

    I also received the law school’s invitation to the presentation of the “Morris Dees Justice Award,” which you also mentioned in your letter as one of the “great things” happening at the law school. I decline that invitation for another reason. Morris Dees is a con man and fraud, as I and others, such as U.S. Circuit Judge Cecil Poole, have observed and as has been documented by John Egerton, Harper’s, the Montgomery Advertiser in its “Charity of Riches” series, and others.

    The positive contributions Dees has made to justice–most undertaken based upon calculations as to their publicity and fund raising potential–are far overshadowed by what Harper’s described as his “flagrantly misleading” solicitations for money. He has raised millions upon millions of dollars with various schemes, never mentioning that he does not need the money because he has $175 million and two “poverty palace” buildings in Montgomery. He has taken advantage of naive, well-meaning people–some of moderate or low incomes–who believe his pitches and give to his $175-million operation. He has spent most of what they have sent him to raise still more millions, pay high salaries, and promote himself. Because he spends so much on fund raising, his operation spends $30 million a year to accomplish less than what many other organizations accomplish on shoestring budgets.

    The award does not recognize the work of others by associating them with Dees; it promotes Dees by associating him with the honorees. Both the law school and Skadden are diminished by being a part of another Dees scam.

    Again, thank you for the invitation to participate in your commencement. I wish you and the law school the very best.


    Stephen B. Bright

    cc: Morris Dees
    Arthur Reed
    Dees award committee

  12. Don Verrilli argued the healthcare law and was victorious. The fact that Scalia came across as a racist had nothing to do with him.

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