U.S. Supreme Court cements the Surveillance States of America

Posted by AzBlueMeanie:

The Fourth Amendment to the U.S. Constitution provides that:

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.

The Fourth Amendment has been on life support since the terrorist attacks of September 11, 2001. The Bush-Cheney regime instituted a massive electronic surveillance program in secret that was warrantless, bypassing the FISA Court, that monitored Americans’ electronic communications. It was unconstitutional and illegal. When this electronic surveillance program was exposed by the media, Congress retroactively "legalized" it in 2008. The FISA Amendments Act. (Ex Post Facto laws are prohibited by Article I, Section 10, Clause 1, of the U.S. Constitution). The FISA Amendments Act was renewed in 2012 with the support of the Obama administration.

The FISA Amendments Act, known as §1881, authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”

The FISA Amendments Act generally requires the Foreign Intelligence Surveillance Court to rubber-stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application. See Wired, Supreme Court Thwarts Challenge to Warrantless Surveillance.

On Tuesday, the "Felonious Five" conservative activist justices of the U.S. Supreme Court cemented the "Surveillance States of America." Whether the Fourth Amendment lives or dies is up to "WE The People" to reverse course.

Lyle Denniston at Scotusblog.com summarizes the Court's opinion, Opinion recap: Global wiretap challenge thwarted:

Pushing a highly secret government program of global wiretapping a broad step away from ever having its constitutionality judged in an open court,the Supreme Court on Tuesday shut down a lawsuit by lawyers, journalists, and others who fear that their electronic exchanges with overseas contacts are being monitored by federal listeners.

The decision, in the case of Clapper v. Amnesty International USA (docket 11-1025), split the Court five to four, with the majority reaching back to a 1923 decision in a natural gas storage case to find a restrictive rule against allowing federal lawsuits to go forward. That rule, the dissenting Justices complained, had never before been used by the Court to block a case on the theory that it did not present a live “case or controversy.”

The ruling marked the first time that the Court had encountered a five-year-old law in which Congress, reacting to government arguments that it needed added surveillance powers to pursue the “war on terrorism,” broadly expanded federal agencies’ authority to monitor telephone, e-mail, and other communications between the U.S. and other countries, using high-volume computer-driven techniques.

Because the Court ruled that the challengers to the 2008 law did not have “standing” under the Constitution’s Article III to file their case in regular civilian court, the decision did not judge the constitutionality of the sweeping new monitoring power. The dissenters did not do so either, but they did argue that the challengers’ case should have been allowed to proceed in lower courts.

Justice Samuel A. Alito, Jr., who wrote the majority opinion, concluded that the challengers’ lawsuit was based upon a “chain of contingencies” that would have to fall into place before their communications might be at risk of eavesdropping. They had not shown, the opinion concluded, that harms to them were “certainly impending” – a rigorous standard for testing the right to sue.

The decision fit into two ongoing patterns established by the modern Court: a narrowing of the scope of the right to sue in federal court as a general proposition, and a stream of decisions insulating highly secret government war programs from judicial review in the regular federal court system.

The Alito opinion expressed a high degree of confidence that a special court, the Foreign Intelligence Surveillance Court, will guard against abuses of the new surveillance program that was freed of a number of restraints that existed under a law first passed in 1978.  That surveillance court operates in total secrecy, within the Justice Department building in downtown Washington, and almost never has turned down completely government requests for “foreign intelligence” surveillance. It has sometimes modified those requests, however.

The Court majority said that the secret court is bound to enforce the Fourth Amendment’s guarantees of privacy, and indicated that the Supreme Court was relying upon it to do so.

* * *

The majority opinion rejected arguments by the challengers that they are almost certain to be monitored by the program in the future, but that they are already suffering harm because they have had to modify their mode of reaching their contacts, sometimes at some expense, to avoid being overheard.   Both claims, the main opinion said, depend upon a variety of steps that may never occur, or at least may not occur in a way that will reach the contacts that the challengers claimed they are making.

Moreover, the opinion said, even if some of their electronic exchanges may be monitored, that may not be able to be traced back and thus blamed on the global wiretapping program. It might be the result of what foreign spy agencies do, or other monitoring sources, or it might be a result of monitoring orders approved by the FISC tribunal before the 2008 amendments — the only provisions at issue in this case — had been enacted.

Justice Alito’s opinion was supported by full by Chief Justice John G. Roberts, Jr., and by Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.

Justice Stephen G. Breyer wrote for the dissenters, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. The dissenting opinion contended that their research turned up not a single case in which the standard used by the majority — that is, that an injury must be “certainly impending” — was ever used to deny a right to sue in federal court.

So let's review: The Bush-Cheney regime engages in a massive unconstitutional and illegal electronic surveillance program of Americans that Congress, rahter than impeaching Bush and Cheney, retroactively (ex post facto) "legalizes" their unconstitutional and illegal acts, and gives the electronic surveillance program the imprimatur of legality by requiring any future surveillance to go through the rubber-stamp FISA Court. The U.S. Supreme Court rules that no American has standing to sue unless he or she can prove that they were actually surveilled by this electronic surveillance program without a FISA Court warrant (an impossibility because both are double-super secret). Without standing to sue, no one can ever challenge the constitutionality of the FISA Amendments Act — a classic "Catch 22." All three branches of government have failed miserably to uphold the Fourth Amendment.