The US Supreme Court in a 5-4 ruling yesterday in Clapper v. Amnesty International rejected the claims of journalists and human rights groups that the government was secretly putting people under surveillance without getting a warrant. The court ruled against them on the technical grounds that the people suing lacked standing because they could not prove that they were being watched and monitored. Why couldn’t they do that? Because the government keeps the entire program secret, a practice started under president Bush and enthusiastically embraced by the Obama administration.
Glenn Greenwald has more on the case and the decision.
Because the Obama administration insists that it is a secret who they target for eavesdropping, neither these plaintiffs – nor anyone else – can prove with absolute certainty that they or their clients have been targeted. Taking a page (as usual) from the Bush DOJ, the Obama DOJ thus argued in response to this lawsuit that this secrecy means that nobody has “standing” to challenge the constitutionality of this law. With perfect Kafkaesque reasoning, the Obama DOJ says that (1) who we spy on is a total secret, and therefore (2) nobody has the right to obtain a judicial ruling as to whether what we are doing is legal or constitutional.
In 2011, the Second Circuit Court of Appeals rejected the Obama DOJ’s arguments and ruled that plaintiffs had standing to challenge the eavesdropping law given the concrete harms they are suffering from the mere existence of these eavesdropping powers. Rather than defend the constitutionality of the law, the Obama DOJ appealed this decision to the Supreme Court, and asked the court to dismiss the suit on standing grounds, without reaching the merits of the lawsuit.
Today, the Supreme Court, by a 5-4 decision, agreed to do exactly that. Justice Alito (joined by Scalia, Thomas, Roberts and Kennedy) fully embraced the Kafka-like rationale of the Obama DOJ.
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.
In a fitting symbol of how the right wing and president Obama are in perfect harmony in abusing civil liberties, it was the five Republican-appointed members of the court who upheld the government’s secret actions.