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Feb 27 2013

Supreme Court backs Obama on warrantless eavesdropping

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.

7 comments

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  1. 1
    auditorydamage

    That’s a nice catch-22. Since, barring a leak, no one can prove they’re being secretly spied upon without a warrant, they don’t have standing to challenge the basic constitutionality of the law giving the state the power to spy on anyone without a warrant. Nixon and Hoover would have loved this.

    Somewhere, a former Stasi employee is chuckling.

  2. 2
    Marcus Ranum

    One of the key hallmarks of authoritarianism is exceptionalism. Somehow, I suspect that anyone spying on the big shots who run the country would get in a lot of trouble. Oh, and who do you think is a bigger threat to national security? You and me or the president?

    I think that everyone over GS-13 should automatically be monitored 24×7 and all their communications recorded. Because a) there have been moles in government before and b) they’re in a better position to cause harm to the government than normal citizens. I bet there’d be some screaming.

  3. 3
    unbound

    Which leads to the inevitable conclusion that a sufficient number of Supreme Court justices are either:
    a) much more political than they are supposed to be, or
    b) they really aren’t as smart as we think they are

    It doesn’t take a 1st year law student to understand that the administrative branch being able to claim that noone is capable of obtaining a judicial ruling is nothing short of a legal meltdown.

    Doesn’t this mean that, due to precedence, all that any branch / program of the government has to do is to bury it under state secret, therefore they can do anything they please?

  4. 4
    Mano Singham

    Yes.

  5. 5
    Marcus Ranum

    Yes, nice Catch-22. It’s the legal equivalent of realizing that they can vote themselves a pay raise.

  6. 6
    baal

    The outcome of this case shames me and the nation. I remember the 80′s, the fall of the Berlin wall and how much we used to ridicule the Soviet bloc for exactly this type of Catch-22 / abuse of the rights of population at the population level.

    I don’t think it’s much of a silver lining but at least the decision was 5/4 and not 7/2 or 9/0.

  7. 7
    left0ver1under

    And when someone in the US government tries to leak evidence of criminal acts by said government, they’re labelled “traitor” and “terrorist”.

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