Supreme Court Authorizes Lawless Wiretapping: Major Hurdles Remain To Be Overcome
02 March 2013
By Stephen Lendman
America's Supremes are notoriously hard right. Equal
justice under law is just a figure of speech. Rule of
law principles and egalitarian fairness don't matter.
Power politics corrupts the High Court. It lacks
legitimacy.
Five Supreme Court justices are Federalist Society
(FS) members. They include Chief Justice John Roberts,
Antonin Scalia, Samuel Alito, Anthony Kennedy, and
Clarence Thomas. They're ideological extremists.
FS began 30 years ago at Harvard, Yale and University
of Chicago law schools. Initially it was a student
organization. It challenges orthodox liberalism. It
corrupts itself in the process.
It advocates rolling back civil liberties. It wants
New Deal social policies ended. It supports imperial
wars, corporatism, and police state harshness.
It wants reproductive choice, government regulations,
labor rights, and environmental protections ended. It
spurns justice in defense of privilege. It defiles
constitutional protections doing so.
Justice Elena Kagan is ideologically sympathetic. She
brags about loving the Federalist Society. As Harvard
Law School dean, she hired Bush's outgoing Office of
Legal Counsel director, Jack Goldsmith. Francis Boyle
called him a war criminal.
Last September, Congress overwhelmingly passed the
2012 FISA Amendments Reauthorization Act. Obama signed
it into law. He called doing so a national security
priority. He lied. It reflects police state harshness.
It's lawless without legitimacy. It extends the 2008
FISA Amendments Act (FAA). It's for another five
years.
It authorizes warrantless spying. It does so without
naming names or probable cause. It violates Fourth
Amendment protections. It states:
"The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon
probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and
the persons or things to be seized."
Overseas phone calls, emails, and other communications
of US citizens and permanent residents may be
monitored without court authorization. Perhaps
domestic ones are covertly. Anything goes is policy.
Probable cause isn't needed. Warrantless electronic
eavesdropping is instrusive and lawless. Everyone is
vulnerable for any reason or none at all. Vague
language allows virtually anything.
Constitutional protections don't matter. They're null
and void. What Bush began, Obama embraces. Things are
worse than ever. Full-blown tyranny remains a hair's
breath away. Obama governs by diktat authority.
The ACLU filed suit. It passed through lower courts to
the Supremes. Last October, High Court justices heard
oral arguments. Clapper v. Amnesty International
challenged the constitutionality of warrantless
spying.
On February 26, the Supreme Court ruled. It dismissed
ACLU's case. It violated constitutional protections
doing so. It wasn't the first time inviolable law was
spurned.
On February 27, the Electronic Frontier Foundation (EFF)
commented. The Court didn't address FFA's
constitutionality, it said. It ruled against lawyers,
journalists, human rights groups, and others
challenging protections too important to deny.
It said they couldn't prove surveillance was
"certainly impending." They didn't have required
standing to sue.
Saying so is deeply troubling. It's an absurdity on
its face. It's a standard never before used. Imposing
it denies the legitimate right to sue. Doing so
reflects police state justice.
"In other words," said EFF, "since (plaintiffs) did
not have definitive proof" of what Washington keeps
secret, "they cannot challenge" the law's
constitutionality.
Saying so defies reason and rule of law fairness.
America's High Court struck another blow against
freedom. Good news remains, said EFF.
Its Jewel v. NSA suit isn't affected. The spy agency
targets millions of ordinary Americans lawlessly.
Doing so is policy. Government officials remain
unaccountable. Evidence is indisputable.
NSA whistleblowers and former AT&T employee Mark Klein
provided it. It proves the telecom giant routes
Internet traffic to a secret San Francisco facility.
NSA controls it.
EFF challenged responsible government officials. They
include George Bush, Dick Cheney, Alberto Gonzales,
and others. They ordered and participated in
warrantless domestic surveillance. Obama and other
administration officials do it now.
In 2009, his administration moved for dismissal. It
claimed permitting it would require revealing "state
secrets."
Lower and appeals courts disagreed. The case remains
active. Perhaps it'll reach the High Court. Losing
Clapper makes Jewel more important.
It's "one of the last remaining hopes for a court
ruling on the legality of" lawlessly surveilling
Americans, said EFF. It's been ongoing for over a
decade.
Ninth US Circuit Court of Appeals judges granted Jewel
standing. They said:
"Jewel has much stronger allegations of concrete and
particularized injury than did the plaintiffs in
Amnesty International. Whereas they anticipated or
projected future government conduct, Jewel's complaint
alleges past incidents of actual government
interception of her electronic communications."
Major hurdles remain to be overcome. The Supreme Court
ruled future harm must be "certainly impending." It's
required to sue, they said. It obstructs future
lawsuits.
It's "very troubling," said EFF. It's especially so
"in the context of cases involving secret
surveillance."
Future conduct can't be predicted. Ruling so denies
all challenges. None can be settled equitably.
Anything can be claimed for any reason to deny them.
Justice Breyer dissented on Clapper. He explained
certainly impending's absurdity, saying:
"One can, of course, always imagine some special
circumstance that negates a virtual likelihood, no
matter how strong."
"But the same is true about most, if not all, ordinary
inferences about future events."
"Perhaps, despite pouring rain, the streets will
remain dry (due to the presence of a special
chemical)."
ACLU deputy legal director, Jameel Jaffer, said the
High Court ruling denies "meaningful judicial review
and leaves Americans' privacy rights to the mercy of
the political branches."
"More than a decade after 9/11, we still have no
judicial ruling on the lawfulness of torture, of
extraordinary rendition, of targeted killings or of
the warrantless wiretapping program."
"These programs were all contested in the public
sphere, but they have not been contested in the
courts."
Police state justice remains policy.
Secret lawless surveillance alone is troubling. It
differs from physical searches. It's hidden. Targets
don't know they're spied on or why. Innocent people
suffer. Constitutional protections are denied.
Reasons for doing so don't wash. According to Supreme
CourtThink, Washington can deny victims standing.
Constitutionality doesn't matter. Actions can be kept
secret. Challengers can't sue unless government
agrees. Unfettered power is institutionalized. Rule of
law principles don't apply.
FAA permits sweeping surveillance. Categories of
people can be targeted. Millions are affected at the
same time. No one know's what's going on or why.
Police state harshness is policy. Innocence is no
justifiable defense. Due process and judicial fairness
don't matter. What Obama officials say goes. They
operate extrajudicially. High Court justices approve.
Doing so makes them complicit. There's no place to
hide.
Electronic communications can be monitored. Probable
cause isn't needed. Obama officials convinced Ninth
Circuit justices to dismiss warrantless wiretapping
challenges earlier.
In Al Haramain Islamic Foundation v. Obama (August
2012), they dismissed plaintiff's challenge. They did
so on what's called "sovereign immunity."
It prevents government, its agencies and departments
from being sued without consent. It stems from earlier
practice. It comes from notions that monarchs can do
no wrong. It violates fundamental freedoms doing so.
EFF hopes Al Haramain won't affect Jewel. It raises
"many causes of action." They embrace more than what
50 USC, Section 1810 covers. It's US law explaining
actual and punitive monetary damages.
Jewel wants warrantless surveillance stopped. It wants
millions of innocent Americans protected. It wants
proper warrants and judicial oversight. It wants rule
of law principles upheld.
EFF moved for a lower court Jewel ruling. It wants its
case to go forward. It wants Washington held
accountable. It wants lawless NSA spying stopped.
It said "FISA preempts the state secret privilege."
District court hearings will begin this fall. Whether
High Court ones follow won't be known for some time.
How they rule most often remains deeply troubling.
Stephen Lendman lives in Chicago and can be reached
at lendmanstephen@sbcglobal.net. His new book is
titled "How Wall Street Fleeces America: Privatized
Banking, Government Collusion and Class War"
http://www.claritypress.com/Lendman.html Visit his
blog site at sjlendman.blogspot.com and listen to
cutting-edge discussions with distinguished guests on
the Progressive Radio News Hour on the Progressive
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