We are non-commercial, all volunteer and supported by our readers. Please help sustain the Dew by making a donation.
Clapper v. Amnesty International:
Associate Justice Alito Changes His Mind About Giving the Targets of Secret Surveillance a Day in Court
Surveillance was victorious over Liberty once again in the U.S. Supreme Court on February 26th. In a 5 to 4 vote in Clapper v. Amnesty International, the court overturned a decision by the Second Circuit Court of Appeals that U.S. citizen attorneys, activists and journalists working on human rights issues have standing to seek a permanent injunction against the monitoring of their electronic communications with foreigners outside the country by U.S. intelligence agencies. The important work they perform requires privacy of communication so that their sources will give them information. Standing is the requirement parties must have a substantive dispute meriting a judicial decision.
The practical effect of the Supreme Court’s reversal of the Second Circuit is that secret policemen may read the e-mail messages exchanged between U.S. citizens and foreign nationals if they can persuade the U.S. Attorney General and Director of National Intelligence to request a warrant from the Foreign Intelligence Surveillance Court (FISC). How difficult is that? Given that the FISC conducts its business in secret, we don’t know much about its decision-making. However, we do know that in 2011 it granted 1,674 of the 1,676 requests for authority to conduct secret electronic surveillance. The other two requests were withdrawn rather than denied. In effect, all that protects U.S. citizens from having intelligence agents read any e-mails they might exchange with foreigners is a court that holds its proceedings in secret and never says ‘no.’
That a court dominated by conservatives would sacrifice freedom to security is unsurprising, but who wrote the majority decision in Clapper and how he delivered the bad news merits scrutiny. The author is one of former President George W. Bush’s appointees: Associate Justice Samuel A. Alito, Jr. Here is what Alito said during his January 10, 2006 U.S. Senate Judiciary Committee Confirmation Hearing when asked whether the victims of government spying should have their day in court:
“Certainly. If someone has been the subject of illegal law enforcement activities, they should have a day in court. And that’s what the courts are for, to protect the rights of individuals against the government or anyone else who violates their rights. And they have to be absolutely independent and treat everybody equally.”
Yet a day in court is exactly what Alito is denying with the Clapper decision. Without standing, bringing an action for a permanent injunction against being spied upon is blocked.
What is Alito’s reasoning? Because U.S. citizens who believe their electronic communications are being monitored have no knowledge of the Government’s targeting practices, what they fear is “necessarily conjectural.” That is not enough to give them standing in court. In footnote 4 he instructs that it is, “not the Government’s burden to disprove standing by revealing details of its surveillance priorities,” and then follows with a bit of terrorist baiting:
“Moreover, this type of hypothetical disclosure proceeding would allow a terrorist (or his attorney) to determine whether he is currently under U.S. surveillance simply by filing a lawsuit challenging the Government’s surveillance program.”
Not only does Alito tell the subjects of secret government surveillance that they cannot have their day in court because the surveillance they complain about is being conducted secretly – that the burden is on them to produce evidence that is in the possession of the secret police – but then tags them as possible terrorists.
To identify other examples of absurdity as nauseating one has to turn to fiction: the exchange between Captain Yossarian and Doc Daneeka about the rule that is also the title of Joseph Heller’s novel Catch 22. Under that regulation, U.S. Army Air Corps bomber crewmen exposed to escalating risks of death because of the professional rivalries among their senior officers could not be medically grounded for insanity unless they so requested. However, all such requests would be automatically denied because they constituted evidence of sanity.
Under the Clapper decision, targets of secret surveillance are denied legal standing to challenge their secret surveillance because they cannot show that they are being surveilled. They cannot show that because their surveillance is being conducted secretly. That is absurdity so patent, so obvious, that the failure to recognize it could be taken as evidence of insanity.
Worthy of Comment
Also on the Dew
My friend Hugh Wilson once described the Atlanta Steeplechase as an event where a large crowd of well-dressed people stand in a pasture and get drunk while horses jump over bushes. The Atlanta Steeplechase celebrated its 50th anniversary this past weekend. A lot of people dressed up in clothes they probably wouldn’t wear to work or church, women wore fancy hats, the good china came out for elaborate tailgating, alcohol was consumed in abundance, and there was some pretty darn exciting horse racing. There were also terrier races, a demonstration by some really cool bird dogs, and camel riding for the kids. ( Read on →
Saturday, March 28, the day before we laid Mom to rest, was busy. People bringing food, funeral service details, and other matters kept us on the go. Later, as things settled down, I felt the need to spend time alone and the best place to do that was in Double Branches on Aunt Vivian’s farm. It was a beautiful day, the sky a deep blue. As I drove to Double Branches, wonderful childhood memories returned. As a boy, I spent many a day there fishing in the ponds, exploring the pastures and woods, riding an old mule, and playing baseball w Read on →
Who would have thought that years in corporate America would be the business background of a newly-published Gwinnett author? Michael Brown, a Loganville, Ga resident, has now had two books published. We read his Somewhere a River, a 268 page novel from Deeds Publishing of Atlanta, and found it most enthralling. It is set in Alabama, the story turning around growing up in the South, high school and college football, and the entanglements we can get ourselves in both when younger and afterward. Later parts of the story take place in a different setting… Wyoming, of all places, as a struggling S Read on →
At least not in Glynn County, Georgia. Nor, I suspect, many other places where duplicitous Republicans reign. In some instances, "protection" is a euphemism for extorting money that you shouldn't have to pay out, if our public servants were doing their job. The Mafia and home insurance come to mind. Which is why, when the term is used by those whom we've hired to "serve and protect," we are relieved to think that, at last, somebody's doing their job. Think again. Glynn County, Georgia, which is situated on the Bight of Georgia and has about a dozen miles of ocean front Read on →