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Is the Supreme Court’s Ruling on Surveillance Really That Significant?


In a remarkable achievement of legal sophistry, the U.S. Supreme Court has ruled against a constitutional challenge to the Foreign Intelligence Surveillance Amendments Act.

The 5–4 ruling this February upheld the federal law that authorizes the National Security Agency (NSA) to eavesdrop on international telephone calls and emails in the so-called war on terror.

The high court’s conservative bloc united to quash any further judicial inquiry into the constitutionality of the government’s surveillance authority. The justices ruled that the plaintiff’s fear they would be caught up in future monitoring was “highly speculative” and therefore they lacked standing to challenge the law in court.

Of course, the reason why the plaintiffs fears are “highly speculative” is that NSA’s wiretapping program is secret — which means the plaintiffs don’t know if they are being targeted or not. According to the court’s majority, this panoptic state of affairs is perfectly constitutional.

Some have appropriately dubbed this the “Catch-22” ruling. Indeed, if there were a Nobel prize for circular logic, the five justices who produced this legal travesty would all be worthy recipients.

The violations of the First and Fourth Amendments are so obvious with regards to NSA’s surveillance program that only a gang of government lawyers could overlook them. Moreover, by effectively giving the executive branch a blank check to invade American citizens’ privacy, the Supreme Court has revealed itself to be nothing more than a rubber stamp for the government. It seems as though whatever government abuse or usurpation the court is confronted with these days, it can be relied upon to muster at least five justices to declare it “constitutional.”

But should we really be surprised by this latest ruling?

It was almost seven years ago that the New York Times ran a story reporting that President George W. Bush had signed an executive order authorizing NSA to monitor, without search warrants, the communications of any party believed to be outside the country, even if the other party to the communication was in the United States. The Bush administration maintained this warrantless-wiretapping program was essential to conducting its war on terror and was legal under the Authorization for Use of Military Force (AUMF).

But that claim was belied by the fact that such broad surveillance powers were explicitly denied to the executive branch by Congress when it passed the AUMF. Furthermore, the Foreign Intelligence Surveillance Act (FISA) had provisions making it illegal to intentionally engage in electronic surveillance without a warrant issued by the Foreign Intelligence Surveillance Court, a secret three-judge panel created by FISA to provide oversight. These crimes were punishable with a fine of up to $10,000 or up to five years in prison for each offense.

At the time when the scandal was breaking, George Washington University law professor Jonathan Turley wrote,

Federal law is perfectly clear. At the heart of this operation was a federal crime. The president has already conceded that he personally ordered that crime and renewed that order at least 30 times. This would clearly satisfy the standard of high crimes and misdemeanors for the purpose of an impeachment.

But rather than investigating what was clearly an abuse of power and a violation of both federal law and the Constitution, Congress amended FISA in subsequent legislation; effectively legalizing the Bush administration’s crimes and relaxing the law’s already minimal requirements. Congress also passed legislation granting the telecommunications companies immunity from any civil liability for their part in the illegal scheme.

The full scope of NSA’s surveillance program is still not known, but it has been revealed that the agency was given unsupervised access to all fiber-optic communications going between some of the nation’s major telecommunications companies’ interconnect locations, including phone conversations, email, web browsing, and corporate private network traffic. It is estimated that NSA has intercepted up to 20 trillion communications by American citizens since September 11, 2001. To call this a “terrorist surveillance program” is misleading to say the least. Whatever the case, it is clear that NSA has been conducting a mass data-mining operation against the American people.

The situation has not improved under the Obama regime. Indeed, in many respects, it has gotten worse. The last few years have witnessed the introduction of drones into domestic law enforcement, an Orwellian policy that has the full support of the White House. How long until these drones are armed?

And it will be under the reign of Obama that NSA will cut the ribbon on a massive new data storage center in Bluffdale, Utah. As investigative journalist James Bamford wrote last year in Wired,

Under construction by contractors with top-secret clearances, the blandly named Utah Data Center is being built for the National Security Agency. A project of immense secrecy, it is the final piece in a complex puzzle assembled over the past decade. Its purpose: to intercept, decipher, analyze, and store vast swaths of the world’s communications as they zap down from satellites and zip through the underground and undersea cables of international, foreign, and domestic networks. The heavily fortified $2 billion center should be up and running in September 2013. Flowing through its servers and routers and stored in near-bottomless databases will be all forms of communication, including the complete contents of private emails, cell phone calls, and Google searches, as well as all sorts of personal data trails — parking receipts, travel itineraries, bookstore purchases, and other digital “pocket litter.” It is, in some measure, the realization of the “total information awareness” program created during the first term of the Bush administration — an effort that was killed by Congress in 2003 after it caused an outcry over its potential for invading Americans’ privacy.

If NSA was restricting its surveillance to terrorists and other evildoers, is it reasonable to believe that they would need a facility with such astounding capabilities? No, it is not. What we have here is yet another secret government agency that has been given a blank check and has predictably run amok.

Now, one could argue that too much is being made of this latest Supreme Court ruling. After all, the U.S. government has been running roughshod over the Fourth Amendment for decades with or without the court’s imprimatur. U.S. intelligence agencies’ contempt for American citizens’ privacy is well-known. Despite documented and admitted serial abuses, not one agent or official from these rogue agencies has ever been prosecuted. Indeed, the FBI’s headquarters in Washington, DC, still bears the name of J. Edgar Hoover, a man who built a bureaucratic empire by flouting the Fourth Amendment as well as many laws.

But even if the Supreme Court had decided to hear the challenge to the FISA Amendments Act and had eventually declared it unconstitutional, it would have been a hollow victory for the Fourth Amendment.

Apparently, NSA has an arrangement with certain foreign intelligence agencies that has enabled them for decades to conduct warrantless domestic surveillance via the ECHELON system. Annie Machon, a former British MI5 official and whistleblower provides a pithy description of how this system works:

ECHELON was an agreement between the NSA and its British equivalent GCHQ (as well as the agencies of Canada, Australia, and New Zealand) whereby they shared information they gathered on each others’ citizens. GCHQ could legally eavesdrop on people outside the UK without a warrant, so they could target US citizens of interest, then pass the product over to the NSA. The NSA then did the same for GCHQ. Thus both agencies could evade any democratic oversight and accountability, and still get the intelligence they wanted.

The ECHELON system was created to monitor Soviet military and diplomatic communications, but, like other relics of the Cold War era, the program has long outlived its original purpose.

Cynical? Yes. Treasonous? Maybe. But it’s a clever way to sneak your Orwellian surveillance state in through the back door.

And now, with the Supreme Court putting its seal of approval on the government’s open flouting of the Fourth Amendment, we can expect the situation will only get worse.

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    Tim Kelly is a columnist and policy advisor at The Future of Freedom Foundation in Fairfax, Virginia, a correspondent for Radio America’s Special Investigator, and a political cartoonist.