Legal expert: Decision “insulates” government spying from court review

Steve Watson
Feb 26, 2013

In a landmark case, the Supreme Court ruled Tuesday that the government cannot be challenged over its secret warrantless wiretapping program targeted at American citizens.

The case was brought by US journalists, lawyers and human rights groups led by Amnesty International. Reuters reports that the Court ruled that none of the parties could sue because they could not prove that they were targets of the program, or that they had suffered any detrimental injury from it.

As we have noted, the Director of National Intelligence (DNI)  has admitted that the National Security Agency violated the US constitution and abused its power by spying on American citizens and monitoring their communications under the expanded Bush era Foreign Intelligence Surveillance Act (FISA).

At the end of last year, after favorable votes in the House and Senate, President Obama re authorized the “intelligence gathering” bill for five more years, effectively allowing the NSA to continue snooping on Americans’ emails and phone conversations until 2017.

In a 5-4 split, Justices today sided with the Obama administration’s argument that the challengers did not have any legal standing in the case.

Justice Samuel Alito wrote that the challengers’ argument was formulated according to a “highly speculative fear” that the government choose to spy on their communications, rather than conduct other forms of intelligence gathering. Alito also stated that the groups could not prove they had been targeted for surveillance by the US government.

“Simply put, respondents can only speculate as to how the attorney general and the Director of National Intelligence will exercise their discretion in determining which communications to target.” Alito wrote.

“We decline to abandon our usual reluctance to endorse standing theories that rest on speculation about the decisions of independent actors,” Alito added.

Justice Stephen Breyer disagreed with Alito, stating that “the government has a strong motive to listen to conversations of the kind described.” Surveillance of such groups “is as likely to take place as are most future events that commonsense inference and ordinary knowledge of human nature tell us will happen.” Breyer added.

“The majority is wrong when it describes the harm threatened plaintiffs as “speculative,” the Justice said.

Breyer further noted that there is a “very high likelihood” that the government would cite the amended FISA law when intercepting the communications of groups that brought the case.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan also voted in dissent of the majority.

Jonathan Hafetz, a former ACLU lawyer and now a lecturer at Seton Hall University’s law school, said, “The decision effectively insulates the government’s increasingly broad surveillance powers from meaningful court review, threatening constitutional liberties in the name of secrecy and security.”

Last June, prior to the re-authorization of FISA, the DNI refused to provide details on the NSA’s clandestine domestic spying program, ironically suggesting that to do so would violate the privacy of Americans.

Senator Ron Wyden and Senator Mark Udall of the intelligence oversight committee had repeatedly asked the NSA to divulge how many innocent Americans have had their communications monitored under the expanded  counterterrorism powers put into place in 2008.

The expansion of powers eliminated the need for the NSA to have probable cause to intercept any American’s phone calls, text messages or emails. Wired acquired a letter (PDF) from the Inspector General of the Office of the Director of National Intelligence, which noted that “NSA leadership agreed that an IG review of the sort suggested would further violate the privacy of U.S. persons.”

The letter, written by I. Charles McCullough, also claimed that the NSA, which has as many employees as the FBI and the CIA combined, does not have the man power to collate and reveal such details, and that to attempt to do so would jeopardize the program.

“I defer to [the NSA inspector general’s] conclusion that obtaining such an estimate was beyond the capacity of his office and dedicating sufficient additional resources would likely impede the NSA’s mission,” McCullough wrote.

In 2011, the NSA tacitly admitted that it has an active domestic spying program when the general counsel testified to a Senate hearing, overseen by Wyden and Udall, that he believes the agency has the authority to track Americans via cell phones.

“There are certain circumstances where that authority may exist,” said Matthew Olsen the Director of The National Counterterrorism Center.

Wyden and Udall have been pressing the NSA for some time to reveal whether or not the agency is collecting sensitive data on Americans such as cell site data, which would allow for tracking the location of anyone using a cell phone in the US. Along with Congressman Jason Chaffetz (R., Utah), Wyden introduced a joint bill that would force any government agency to secure a search warrant and show probable cause before tracking the location of any American.

Wyden has consistently expressed concern that the law relating to surveillance is unclear, and is being “secretly interpreted by the executive branch.”

As a candidate for president in 2008, Barack Obama promised to revisit and revise the rules of FISA to protect Americans’ rights, after he had voted for the bill as a Senator. However, as president, Obama has continued where president Bush left off in calling for extending the legislation and even actively preventing any judicial oversight of the wiretapping program.

The FISA provision, introduced in 2008, was merely a confirmation of activity that government spy agencies, including the NSA, have been engaging in for years.

The ACLU recently released an infographic (below) detailing how the NSA’s warrantless wiretapping program has grown in gargantuan proportions and now intercepts 1.7 billion US electronic communications every single day. Those communications will soon all be funneled through the top secret $2 billion spy center in the Utah desert, which the NSA has refused to provide Congress with details of.

While the government says that the official targets of this expanding surveillance dragnet are “terrorists,” we now have an admission that snoops are using these powers to go after Americans exercising their constitutional rights.Feds Admit NSA Spying Violated 4th Amendment nsa infographic


Steve Watson is the London based writer and editor for Alex Jones’, and He has a Masters Degree in International Relations from the School of Politics at The University of Nottingham, and a Bachelor Of Arts Degree in Literature and Creative Writing from Nottingham Trent University.

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