Clapper v Amnesty: Courts and Congress v Our Constitution

Wednesday, February 27, 2013 at 11:18 am by

Tuesday’s decision by the Supreme Court in Clapper vs Amnesty Int’l reflects judicial formalism at its worst. The decision abandons fundamental rights and the courts’ constitutional mandate, while placing government agencies above the law, so long as they commit their abuses in secret.

Clapper is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government all at once. By allowing executive secrecy to insulate violations from review, five Justices of the Supreme Court have effectively killed what shreds once remained of the Fourth Amendment.

Every American should be gravely concerned, and anyone who still considers America “the land of the free” should carefully reconsider their assumptions. Several elements of the decision are disturbing, especially when viewed in a broader context beyond the case itself.

Most obviously disappointing is the result of the ruling, not only for the plaintiffs, but also anyone who uses the phone system or Internet.

A scandal in plain sight

The Clapper saga started with the Foreign Intelligence Surveillance Act, which was first passed in the 1970s to restrict domestic spying by government agencies. It was prompted by decades of abuses by the FBI, CIA, and other agencies that Congress investigated and found conducting “a sophisticated vigilante operation aimed squarely at suppressing the legitimate exercise of First Amendment rights of speech and association,” including a documented government campaign to “neutralize” Martin Luther King, Jr. and other civil rights leaders.

In 2002, the Bush administration authorized the National Security Agency (the NSA) to begin a secret warrantless wiretapping program in clear violation of the FISA law. It remained secret, at one point prompting a dramatic intra-executive showdown and threats of a mass resignation by Justice Department officials under the Bush administration, until the New York Times exposed the program in late 2005.

Aside from generating an earthquake across Washington, the first results of the Times‘ expose included government threats to prosecute the journalists. Their only “crime” was exposing the public to an issue that should never have been secret in the first place.  While prosecutors thankfully opted not to prosecute Lichtblau & Risen, others continued to face prosecution for pursuing transparency in the public interest.

In the middle of the 2008 presidential election race, Congress amended FISA to permit what the original statute had been passed to prohibit. Rather than require the agency to comply with the long-standing law, however, Congress instead watered down the law to allow the agency’s abuses to continue.

Congress’ 2008 amendments to FISA doomed oversight. As the dissenting Justices in Clapper observed, the 2008 amendments allow NSA monitoring not only of agents of a foreign power, but also law-abiding Americans. Congress in 2008 also removed FISA’s original requirement for the NSA to identify specific targets and locations for surveillance, enabling the agency to conduct bulk collection, or dragnet surveillance. Finally, the 2008 amendments subsidized corporate crime, extending a corporate subsidy in the form of immunity from lawsuits alleging privacy violations, ensuring that telecommunications companies could continue facilitating unconstitutional surveillance without fearing lawsuits from a justifiably hostile public.

That was the context in which a group of activists, journalists, and lawyers among the most likely suspects for NSA surveillance filed suit.

Closing the courthouse doors

In the formalistic terms favored by contemporary jurists, the Clapper decision rejected the constitutional standing of the plaintiffs to challenge the NSA’s program. In plain English, the Court threw the case out before addressing the merits, because the plaintiffs could not demonstrate that they, in particular, had endured harm.

Of course, as the dissent pointed out, the government has the authority to monitor the plaintiffs’ communications, and every motive to do so. The dissent also noted the NSA’s astounding capacity: the agency intercepts 1.7 billion emails and phone calls every day.

The majority opinion, in contrast, buried the Court’s head in the sand.

Five Justices who decided the case argued that a secret court created by FISA imposes needed checks and balances on government abuses.  Like their reasoning on standing, the argument holds no water, and appears obviously nonsensical in context: as the dissent observes, the FISA court is essentially a rubberstamp.

None of the Justices explored how secrecy inherently makes a mockery of the judicial process. The distinction between law and politics rests on stare decisis, the principle of adherence to the rules established in prior cases. Law requires consistency, which is impossible when the rulings themselves are secret.

(Incidentally, that’s one reason why Senator Feinstein’s proposal for a secret court to review drone strikes is so unfortunately inadequate.)

Also absent from most commentary on Clapper is a recognition of how this decision could impact other cases challenging government abuses beyond surveillance.

Declaring that plaintiffs must somehow pierce the veil of government secrecy in order to challenge executive abuses before a court of law, as the Supreme Court did in Clapper, could tilt the jurisprudential field in the government’s favor on any number of government violations. For example, currently pending in the US Court of Appeals for the Second Circuit (from which the Clapper appeal emerged) is Obama v. Hedges, a case challenging domestic military detention without trial under the National Defense Authorization Act (NDAA) of 2012.

The Court thus invites agencies to evade judicial review, while also (no less than the absurd state secrets privilege) undermining judicial independence. From this perspective, Clapper undermines the role of the courts envisioned by the Founders of our Republic in the Federalist Papers No. 78.

Placing the NSA above the law

With the courts out of the oversight equation, not only the public, but even members of the Senate intelligence Committee, are kept in the dark.

Senators have sought information about secret FISA court rulings, only to be greeted with the NSA’s equivalent of a middle finger: the agency has preposterously claimed at times that it is unable to identify the number of Americans whom it has monitored, and that answering congressional questions (rather than the NSA’s surveillance itself) would compromise the privacy of monitored Americans.

The results? Earlier this year, Congress extended the 2008 amendments for another five years, ensuring that the NSA’s wireless wiretapping program will continue into the next administration even though none of several crucial questions were ever answered.

As Senator Ron Wyden (D-OR), the leading voice for oversight on the Intelligence Committee, explained at the time:

This is the last opportunity for the next five years for the Congress to exercise a modest measure of real oversight over this intelligence surveillance law. It is not real oversight when the United States Congress cannot get a yes or no answer to the question of whether an estimate currently exists as to whether law abiding Americans have had their phone calls and emails swept up under the FISA law.

With the Supreme Court having abdicated its role, Congress must reverse its premature decision to extend the 2008 FISA amendments until 2018.

The Court’s supposedly “conservative” majority

Five Justices in the Clapper majority are often described as “conservative,” in distinction from the four supposedly “liberal” Justices who dissented.

But there is nothing conservative about their decision in Clapper. Ruling that courts must reject the standing of plaintiffs stymied by government secrecy is nothing short of radical, with implications that should disturb conservatives.

The fault line visible in yesterday’s 5-4 decision was not between a conservative majority and a liberal minority, but rather between a deferentialist insurgent majority and an independent moderate minority. Put another way, the majority’s decision would be predictable in a country like China, or the former Soviet Union, where courts are expected to defer to an imperial executive branch.

There was a time when America was different.

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28 Responses to “Clapper v Amnesty: Courts and Congress v Our Constitution”

  1. josh Says:

    I confess, I envy your ability to speak on this matter calmly and rationally. I am mustering all that I can to even type intelligibly. I have a rash of four letter words usually reserved the dredges of humanity that I wish I could unleash.

    What scares me most is the encroaching militarization of the police. But were it just militarization, and not actually the creep (or head first dive into the deep end) of “intelligence gathering” for law enforcement purposes. As it is, people are murdered in their homes when the police get a wrong address; how many more will be murdered when along with Battle Cat armored personnel carriers and speed boats with Machine Gun Cannons mounted, the police will simply be able to say, “It’s secret.”

    If you’re on a “Kill List”, it is secret and so one has no standing. If they are then killed, they have no standing because they’re dead. I’m sure it’s an Intelligence Community’s wet dream, however, its impacts will be felt far and wide, to be sure. Everything the congress has done to keep us safe from “Terrorists” has made us more vulnerable to they’re executive. I’m sure there are examples of drug charged brought with evidence that was secret, and still accepted. I’m just to offended by this to search them out.

    What a sad sad day, in long line of sad days.

  2. Clapper v Amnesty: Courts and Congress v Our Constitution | BirchIndigo Says:

    [...] This article was originally published on the People’s Blog for the Constitution. [...]

  3. Shahid Buttar Says:

    Thanks, Josh! Don’t lose hope — the antidote to despair is action. If you’re interested in taking action through outreach, education, and mobilization of a diverse local coalition, we’d be thrilled to help you. Contact our organizing team at organizing[at]bordc.org.

  4. The “political and legal elites” are using “emergency laws” to enslave us, not protect the homeland, and worse than Hitler with his Reichstag Fire Decree | ofthehighest Says:

    [...] Clapper v Amnesty: Courts and Congress v Our Constitution (constitutioncampaign.org) [...]

  5. The “political and legal elites” use “emergency laws” to enslave us, not protect the homeland, and worse than Hitler with his Reichstag Fire Decree | ofthehighest Says:

    [...] Clapper v Amnesty: Courts and Congress v Our Constitution (constitutioncampaign.org) [...]

  6. Issue No. 158 – March 1, 2013 Says:

    [...] Clapper v Amnesty: Courts and Congress v Our Constitution [...]

  7. Today’s News Links: 03-04-13 | Material Truth Says:

    [...] Clapper v Amnesty: Courts and Congress v Our Constitution [...]

  8. People's Blog for the Constitution » BORDC in the news: February 25-March 4, 2013 Says:

    [...] the daunting prospect of government-issued biometric identification cards, as well as the recent Supreme Court decision in the Clapper case.  As reported by numerous news outlets, lawmakers are currently considering the use of personal [...]

  9. People's Blog for the Constitution » Immigration enforcement: a trojan horse? Says:

    [...] to ascertain where you go, when, and with whom you visit. Meanwhile, thanks to Congress and the Supreme Court, whenever you use a phone or email to communicate, the NSA has a record of everything you say and [...]

  10. Issue No. 159 – March 5, 2013 Says:

    [...] Blog for the Constitution: Clapper v Amnesty: Courts and Congress v Our Constitution Clapper is a constitutional travesty of the highest order, reflecting the erosion of privacy, [...]

  11. People's Blog for the Constitution » BORDC in the News: March 4-11, 2013 Says:

    [...] The next day, on March 7, Shahid appeared on The Rude Awakening Show to further discuss the separation of powers and how it has faded in the face of executive encroachments. Shahid identified multiple perspectives from which to consider the precarious pattern reinforced by the Supreme Court’s decision in Clapper v Amnesty Int’l: [...]

  12. People's Blog for the Constitution » A promising step against domestic drones Says:

    [...] The bill provides that any covered information collected in violation of it shall be removed from all databases. However, it is unclear how those subject to such surveillance would know whether the information has been deleted with expanding state secrets doctrine. [...]

  13. A promising step against domestic drones | Drones Satellites Cointelpro Microwave Radar Nanotechnologies Abuse Alerts in NE Fl., the U.S. and Abroad Says:

    [...] The bill provides that any covered information collected in violation of it shall be removed from all databases. However, it is unclear how those subject to such surveillance would know whether the information has been deleted with expandingstate secrets doctrine. [...]

  14. A promising step against domestic drones enlightening article | GEOENGINEERED WORLD Says:

    [...] The bill provides that any covered information collected in violation of it shall be removed from all databases. However, it is unclear how those subject to such surveillance would know whether the information has been deleted with expandingstate secrets doctrine. [...]

  15. People's Blog for the Constitution » Is there hope for the rule of law? Says:

    [...] we wrote about recently, the Supreme Court’s decision in Clapper vs Amnesty Int’l  has now made it nearly impossibly [...]

  16. People's Blog for the Constitution » Son’s battle for records from 1960′s sheds light on today’s secrecy state Says:

    [...] though, litigation is not even enough due to the administration’s liberal use of the state secrets privilege. Under that doctrine, the executive can avoid disclosure of documents merely by asserting that [...]

  17. People's Blog for the Constitution » The press fails yet again Says:

    [...] were threatened with prosecution for revealing the National Security Agency’s massive (and unconstitutional, and illegal) domestic spying efforts to the [...]

  18. People's Blog for the Constitution » Raise your voice beyond the news cycle: Tell candidates to restore civil liberties Says:

    [...] values by your state and federal representatives. After the infamous PATRIOT Act came FISA and the NSA’s warrantless wiretapping scheme, the FBI’s infiltration of mosques alongside broader FBI [...]

  19. People's Blog for the Constitution » NSA spying revealed: Uncle Sam is watching you, and both Congress and the courts are complicit Says:

    [...] Americans without any pretense of justification, confirming concerns raised by civil libertarians (including me) for years. In light of Congress’ recent decision to extend the law permitting such abuses for [...]

  20. Green Shadow Cabinet: Confirmation of America’s fears that the government is spying on us | Independent Political Report: Third Party News Says:

    [...] of millions of Americans without any pretense of justification has confirmed concerns raised by civil libertarians for [...]

  21. xxxMadam Says:

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  22. People's Blog for the Constitution » Secret law thrives, eroding the courts Says:

    [...] to the adversarial legal system. The Court’s decision in Clapper v. Amnesty International made judicial review extremely difficult to obtain, since “the Court threw the case out before addressing the merits, because the [...]

  23. People's Blog for the Constitution » BORDC joins lawsuit vs. dragnet NSA spying Says:

    [...] Court justified its decision to ignore the merits of prior legal challenges to NSA abuses (such as Clapper v. Amnesty Int’l) does not apply. Instead, the government’s admission confers indisputable standing to [...]

  24. Church, Rights Groups Sue NSA Over Spying | WHISNews21 Says:

    [...] For too long, government secrecy has insulated these programs, not only from judicial review (see Clapper v Amnesty), but also from legislative efforts to repeal noxious and un-American laws including the USA [...]

  25. People's Blog for the Constitution » FBI answers questions about drones while evading real scrutiny Says:

    [...] of its responses to Sen. Paul remains classified. A disturbing pattern is clear: from cases like Clapper v. Amnesty International to the secret deliberations of the FISA court, which supposedly provide appropriate protections [...]

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  27. People's Blog for the Constitution » Gallows humor: jokes about NSA spying Says:

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  28. People's Blog for the Constitution » Raise your voice on Bill of Rights Day Says:

    [...] abuses by the NSA for another five years, and the Supreme Court’s outrageous decision in Clapper v. Amnesty Int’l turning a blind eye to dragnet domestic surveillance, the document is also a clarion [...]

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