This just in: Our nation’s surveillance industrial complex is above the law. At the very least, it’s beyond the reach of the US Constitution.
Earlier this week the Supreme Court of the United States decided not to decide whether the warrantless wiretapping of American citizens – and the 2008 law that endorsed such spying after the fact -- violated our Fourth Amendment protections against unlawful search and seizure.
By a party line vote, the justices decided 5 to 4 that the groups seeking to overturn the 2008 FISA Amendments Act – namely Amnesty International, the ACLU, and a variety of human rights and journalist organizations – had no standing to bring their suit. (And yes, I know that officially SCOTUS has no party lines. But we all know how this works in real life.)
In other words, because the plaintiffs couldn’t prove they were harmed by the wiretaps, they didn’t have the right to complain about it. Thus SCOTUS could forever avoid having to decide whether that act violated “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
And why couldn’t they prove harm? Because it’s a secret.
Remember, we’re talking about the National Security Agency here. SCOTUS essentially said that if you can’t prove the NSA is spying on you, you can’t complain about it. And if you can prove the NSA is spying on you, well, they aren’t very good at their jobs, are they?
Quick background for those of you who haven’t been paying attention for the last 10 years: Some time after 9/11 the NSA began installing data mining equipment in locked rooms at various junction points on the Internet and communications networks to hoover up emails and phone calls. They were looking for conversations between foreign nationals in the US and outside of it, in the hunt for terrorists. Along the way they most surely sucked up conversations of ordinary American citizens who were not terrorists. And they did so without first obtaining secret approval from a judge as required by the Foreign Intelligence Surveillance Act of 1978 (aka FISA).
The reason we know about all of this is thanks to a guy named Thomas M. Tamm, a DOJ lawyer at the time who discovered the secret program and ultimately turned to the New York Times to expose it. And we have former AT&T tech Mark Klein to thank for identifying one of these secret rooms at an AT&T facility in San Francisco. Otherwise it might still be a secret.
Back to the ruling. The dissenting opinion, penned by Justice Breyer, essentially says the harm is real, because we all know who the NSA is and what it does – it’s no logical leap to assume that innocent American citizens are being spied on.
The problem with this ruling? Among other things, unfettered eavesdropping by the world’s biggest spy agency can kill attorney-client privilege, especially for those who are accused (but not convicted) of alleged terrorist acts. It can reveal the identities of secret informants and government whistleblowers – like the two gentlemen who helped expose the warrantless wiretapping in the first place. It can scotch the efforts of human rights organizations to expose illegal acts by the NSA itself. And, of course, it can violate the rights of ordinary citizens who happen to make the occasional overseas phone call.
As TechDirt’s Mike Masnick notes,
Doesn't that seem like a serious constitutional problem? The government can pass laws that it can spy on people in private, and there's no way to then challenge that law. Oh, and if you happen to discover (by accident!) that you've been spied upon the government can just claim sovereign immunity, and that's it. Case closed.
This week members of the US Senate have asked the FISA court to make it easier to declassify its proceedings – so if we can’t find out how the NSA is violating our rights today, at least we might be able to uncover what abuses have occurred in the past. In a hearing on the FISA bill last December, Senator Jeff Merkley (D.-Oregon) stated:
“An open and democratic society such as ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statute… When a law is kept secret, public debate, legislative intent, and finding the right balance between security and privacy all suffer.”
We’ve seen what happens in other countries when their spies are no longer accountable to anyone but themselves. You don’t have to be paranoid to imagine it happening here. Rulings (or non-rulings) like this one just make it a lot easier.
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