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 The other two requests were withdrawn rather than denied.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.