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US Supreme Court: The Government Can Spy On You All and You Can't Sue

US Supreme Court: The Government Can Spy On You All and You Can’t Sue

By Dennis Loo (2/27/13)

Yesterday the US Supreme Court, in a 5-4 ruling, rejected lawyers’, human rights advocates’, and journalists’ suit that the federal government has been carrying out dragnet surveillance over their international phone and electronic communications. Speaking for the majority, Justice Sam Alito said that the plaintiffs could not prove that they were harmed by the government’s spying and that they therefore lacked standing to sue.

The media has not noted that Alito’s chain of reasoning completely bypasses the fact that the spying on all of us - it’s not just international calls, by the way, it’s all domestic calls and other electronic activity that the government is monitoring - is harmful per se. Alito is saying that the government may carry out this warrantless surveillance and that we must show that what the government is doing with this information is harmful in order to have standing to sue. In other words, the 5-4 majority take as a given that which should itself be examined.

The Supreme Court's majority decision is like someone trying to get the police to intervene against a boss who is secretly videotaping his female employees as they get dressed and undressed, and having the police say that the female employees have to prove that their boss is harming them by his use of these videotapes. (While I have deliberately analogized this in a way to bring home its import, the analogy of a creepy stalker boss is actually less harmful than what the government has been and is now doing. Voyeurism, while abhorrent, is relatively less harmful than assassination and torture. See, for example, my comments later on about Obama's use of drones to assassinate people.)

As described by today’s New York Times:

“Under the system of warrantless surveillance that was put in place by the Bush administration shortly after the terrorist attacks of Sept. 11, 2001, aspects of which remain secret, the National Security Agency was authorized to monitor Americans’ international phone calls and e-mails without a warrant.

“After The New York Times disclosed the program in 2005 and questions were raised about its constitutionality, Congress in 2008 amended the Foreign Intelligence Surveillance Act, granting broad power to the executive branch to conduct surveillance aimed at persons overseas without an individual warrant.”

As one of the plaintiffs' spokespersons explained on NPR yesterday, this puts the plaintiffs (and the public more generally) in a Catch-22 situation (even within the flawed logic of the majority's position): you can’t definitively show that you have been harmed by the government’s surveillance because the government won’t disclose what it is secretly doing.

There are numerous problems with the Times’ coverage of this, notably in the two paragraphs that I cite above, which contain a number of factual errors. A central one is the assertion and presumption that all of this surveillance is necessitated by the threat of terrorism. One of part of this is the widespread belief that this warrantless surveillance began after 9/11. It did not. It began shortly after Bush took office in 2001, seven months before 9/11.

The fastest way I can speak to this and related points is by excerpting portions from Globalization and the Demolition of Society:

In February of 2001, the Bush team, through the National Security Agency (NSA), called all of the major telecommunications companies together and asked that they allow the NSA to tap all the nation’s telecommunications traffic. All of the carriers except Qwest complied with Bush’s felonious request. As former CIA analyst Ray McGovern put it in an October 15, 2007 article at ConsortiumNews.com, “NSA Spying: What Did Pelosi Know?”, http://www.consortiumnews.com/2007/101407a.html, accessed on October 16, 2007:

It turns out that seven months before the threat of terrorism got President George W. Bush's attention (despite the best efforts of then-counterterrorism chief Richard Clarke to install it on everyone’s screen-saver, so to speak), the administration instructed NSA to suborn American telecommunications companies to spy illegally on Americans.

The general counsel of Qwest Communications advised management that what NSA was suggesting was illegal. And to his credit, the head of the company at that time stuck to a firm ‘No,’ unless some way were found to perform legally what NSA wanted done.

Qwest’s rivals, though, took their cue from the White House, and adopted a flexible attitude toward the law—and got the business. They are now being sued. Lawsuit filings claim that, seven months before 9/11, AT&T “began development of a center for monitoring long-distance calls and Internet transmissions and other digital information for the exclusive use of the NSA.”

For its principled but, in government eyes, recalcitrant attitude, Qwest indicates that it lost out on lucrative government contracts.

This Telecom Amnesty Bill passed Congress supported by, among others, President-Elect Barack Obama who had previously vowed to support a filibuster of the bill.

For further documentation, see:

Leslie Cauley, “NSA has Massive Database of Americans’ Phone Calls,” USAToday.com, May 11, 2006, http://www.usatoday.com/news/washington/2006-05-10-nsa_x.htm, accessed January 11, 2011.

See Sarah Burnett and Jeff Smith, “Documents: Qwest was Targeted,” RockyMountainNews.com, October 11, 2007, http://www.rockymountainnews.com/drmn/tech/article/0,2777,DRMN_23910_5719566,00.html, accessed January 10, 2011; Steve Benen, “Did the NSA Retaliate Against Qwest?” The Carpetbagger Report (blog), October 11, 2007, http://www.thecarpetbaggerreport.com/archives/13201.html, accessed January 13, 2011;

Scott Shane, “Former Phone Chief Says Spy Agency Sought Surveillance Help Before 9/11,” NYTimes.com, October 14, 2007, http://www.nytimes.com/2007/10/14/business/14qwest.html, accessed January 23, 2011.

Since taking office, Obama has retained the apparatus created by his predecessors and gone even further, insisting, for example, on a new principle his Department of Justice (DOJ) calls “sovereign immunity” with respect to the government’s ubiquitous surveillance: the executive government is not subject to supervision unless it can be shown that private information about someone was deliberately released in order to harm that person. As Glenn Greenwald described it:

[T]he Obama DOJ demanded dismissal of the entire lawsuit [brought by the Electronic Freedom Foundation in October 2008 against the government for its warrantless spying on Americans] based on (1) its Bush-mimicking claim that the "state secrets" privilege bars any lawsuits against the Bush administration for illegal spying, and (2) a brand new "sovereign immunity" claim of breathtaking scope -- never before advanced even by the Bush administration -- that the Patriot Act bars any lawsuits of any kind for illegal government surveillance unless there is "willful disclosure" of the illegally intercepted communications.  

In other words, beyond even the outrageously broad "state secrets" privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they "willfully disclose" to the public what they have learned.[i] [Emphases in original.]

In 2010, Obama publicly targeted an American citizen, Anwar Al-Aulaqi, for assassination. The ACLU, on behalf of Al-Aulaqi’s father, filed suit attempting to prevent his son’s assassination and to reverse the precedent that allowed a US president to act as judge, jury, and executioner of someone who has merely been accused. [The Obama White House subsequently did in fact assassinate Al-Aulaqi by drone.] The Obama DOJ replied that Al-Aulaqi’s father’s fear for his son’s life was not credible: the allegations that Al-Aulaqi had been targeted for killing are “entirely speculative and hypothetical [and] plaintiff cannot demonstrate that he faces the sort of real and immediate threat of future injury,”[ii] that the evidence against Al-Aulaqi could not be examined because the president declared it to be “national security secrets,” and that the executive branch’s decision to target Al-Aulaqi was a “battlefield” decision and should not be subject to supervision by the judicial branch:

“It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.” Chicago & Southern Air Lines, 333 U.S. at 111. “Judges deficient in military knowledge, lacking vital information upon which to assess the nature of battlefield decisions, and sitting thousands of miles from the field of action” cannot reasonably review the lawfulness of a an alleged military or intelligence operation. Dacosta, 471 F.2d at 1155; see also Schneider v. Kissinger, 412 F.3d 190, 196 (D.C. Cir. 2005) (“Unlike the executive, the judiciary has no covert agents, no intelligence sources, and no policy advisors. The courts are therefore ill-suited to displace the political branches in such decision-making.”). That resolution of plaintiff’s claims would put at issue the Executive’s confidential military, intelligence, and diplomatic information, including information concerning the threat posed by a foreign organization against which the political branches have authorized the use of all necessary and appropriate force, whether that threat is imminent or concrete, whether there are reasonable alternatives to lethal force, and how such actions may affect relations with a foreign state, is further evidence that plaintiff raises non-reviewable political questions. . . .

It should therefore be apparent that to litigate any aspect of this case, starting with the threshold question of whether plaintiff has in fact suffered any cognizable injury that could be remedied by the requested relief, would require the disclosure of highly sensitive national security information concerning alleged military and intelligence actions overseas. For this reason, the Secretary of Defense, the Director of National Intelligence, and the Director of the CIA have all invoked both the military and state secrets privilege, and related statutory protections, to prevent disclosures of information that reasonably could be expected to harm national security. Absent the privileged information, the case cannot proceed.[iii]

 

These are the words of the administration that came into office claiming that Bush and Cheney were violating the Constitution and promising to change that.[iv] Let us assume for the sake of argument that Al-Aulaqi really is a bad guy. Allowing a president to order someone’s assassination, even a really bad individual, without any trial and without any supervision, means that any president, those that you like and those that you do not, those that you trust and those that you do not, those who have no problem with you and those who regard you as a dire political opponent, can simply order you eliminated. That is why the legal system’s philosophical linchpin is that no one is above the law.

 

Consider the following highly abbreviated list of what has happened since Bush II took office: the legalization and ongoing practice of torture; the doctrine and practice of preemptive attacks; the targeting of civilians during war; the open and ongoing violation of the 1978 FISA law through the warrantless surveillance of hundreds of millions of Americans; the stripping of habeas corpus rights and the consequent indefinite detentions; the Warner Act, NSPD-51, the USA PATRIOT Act, the Protect America Act of 2007, and hundreds of signing statements that override the laws passed by Congress. The breaching of long-standing civil liberties and fundamental beliefs in American governance risks generating severe fissures in the social compact.

As I argue at length in GDS, the imposition of these surveillance measures and outrageous violations including assassination do not principally have to do with the threat of anti-state terrorism. The onset of anti-state terrorism by groups such as al-Qaeda are actually a symptom rather than the cause. The cause is the new world order of neoliberal regimes that widen the gaps between the 1% and the rest and generate instability, insecurity, and disasters on the macro and micro (individual) levels.

A Disorderly New Order

Walmart’s rock bottom pricing and insistence on lowering prices every year on staples forces suppliers to employ the cheapest labor the globe offers. This produces job losses domestically and hollows out the economic activity and viability of Main Street businesses around the country. It accelerates deindustrialization and the consequent rise of illicit and gray- and black-market economic activities, since licit activities are disappearing. In Detroit, for instance, real estate depends heavily for its viability upon drug dealers who represent one of the only thriving economic activities around. In China, millions of involuntary migrants undergird the country’s race for economic power, even as the government treats them as hooligans. The drug trade in the US represents a highly profitable—and therefore violent—business because the drug war drives the value of the drugs up and therefore spawns drug dealers aplenty, both domestically and internationally. The drug war itself, therefore, has contributed substantially to the funding of anti-state terrorist groups that profit from the opium, for instance, of the poppy fields in Afghanistan.

Muslims’ antipathy for the West grows directly out of the policies being carried out, especially by the West and the US, not by the fact that “they hate our freedoms,” as Bush claimed. Neoliberalism, in other words, creates and expands the populations and activities that it then turns around to label as dire threats to its brave new disorderly order. Put another way, the forces insisting that order is under siege and that repression and extralegal measures are necessary to cope with that disorder are the same forces creating disorder in the society by dispossessing increasing ranks of the people, endangering the planet’s biosystem, and provoking greater and greater levels of social insecurity. [Emphasis added.]



[i] Glenn Greenwald, “New and Worse Secrecy and Immunity Claims from the Obama DOJ,” Salon.com, April 6, 2009, http://www.salon.com/news/opinion/glenn_greenwald/2009/04/06/obama, accessed February 14, 2011.

[ii] “[T]he relief he [Plaintiff] seeks is based on unfounded speculation that the Executive Branch is acting or planning to act in a manner inconsistent with the terms of the requested injunction. Because such allegations are entirely speculative and hypothetical, plaintiff cannot demonstrate that he faces the sort of real and immediate threat of future injury that is required in order to seek the relief he is requesting. Moreover, the declaratory and injunctive relief plaintiff seeks is extremely abstract and therefore advisory—in effect, simply a command that the United States comply with generalized standards, without regard to any particular set of real or hypothetical facts, and without any realistic means of enforcement as applied to the real-time, heavily fact-dependent decisions made by military and other officials on the basis of complex and sensitive intelligence, tactical analysis and diplomatic considerations.” From “Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support of Defendants’ Motion to Dismiss,” pp. 2-3, at Scribd.com, September 25, 2010, http://www.scribd.com/doc/38129561/Aulaqi-v-Obama-DOJ-Main-Brief, accessed February 16, 2011.

[iii] “Opposition to Plaintiff’s Motion for Preliminary Injunction and Memorandum in Support of Defendants’ Motion to Dismiss,” in the Matter of Nasser Al-Aulaqi, on behalf of Anwar Al-Aulaqi v. Barack Obama et al, Civ. A. No. 10-cv-1469 (JDB), filed September 25, 2010, in the US District Court for the District of Alabama, available at Scribd.com, http://www.scribd.com/doc/38129561/Aulaqi-v-Obama-DOJ-Main-Brief, accessed February 16, 2011.

[iv] Obama’s pledge to assassinate Al-Aulaqi has been reported by numerous mainstream media outlets such as the New York Times and ABC News and confirmed by Obama’s Director of National Intelligence Adm. Dennis Blair in Congressional testimony. Glenn Greenwald summarizes this in his column, “Confirmed: Obama Authorizes Assassination of U.S. Citizen,” Salon.com, April 7, 2010, http://www.salon.com/news/opinion/glenn_greenwald/2010/04/07/assassinations, accessed April 7, 2010.

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