The US Supreme
Court (AFP Photo / Karen Bleier / Files)
Source: Russia Today
http://rt.com/usa/news/surveillance-fisa-supreme-wiretap-324/
The US government insists that Americans don’t have the
right to challenge a law that lets the National Security Agency eavesdrop on
the intimate communications of anyone in the country, but all of that could now
change as early as next week.
The Supreme Court will officially start their second
session of the year on Monday, and first on the agenda is a matter that could
eventually shatter the government’s ability to order wiretaps on the emails and
phones of any US citizen without ever obtaining a warrant.
The Foreign Intelligence Surveillance Act (FISA) was put
into place in the 1970s to install safeguards to keep Americans safe from
unlawful eavesdropping. Following the terrorist attacks of September 11,
though, the George W. Bush administration ordered amendments to the law that
have ever since allowed the NSA to monitor the communications of any US citizen
as long as the government suspects that they are corresponding with anyone
outside of the country.
Last month, the US House of Representatives voted to
reauthorize the 2008 FISA Amendment Act (FAA), but not without attracting
criticism from some very concerned parties. The American Civil Liberties Union
filed a legal brief warning, “Under the FAA, the government can target anyone
— human rights researchers, academics, attorneys, political activists,
journalists — simply because they are foreigners outside the United States, and
in the course of its surveillance it can collect Americans’ communications with
those individuals.”
Beside from the obvious opposition to the warrantless
wiretapping of any American with no explanation, there’s another problem that
has put the FAA in the spotlight. The Justice Department has insisted that
Americans can’t challenge the eavesdropping provisions because no civilians can
say with absolute certainty that they have been targeted by secret
surveillance.
The reason Americans can’t prove they’ve been monitored,
of course, is because the government won’t give them yes or no answer anytime
they’ve been asked.
Each time the question comes up over who has been
targeted, the government has defaulted to say that national security prohibits
them from disclosing who’s been subjected to NSA spying, claiming state secret
privilege to prevent disclosing even the bare bones of their wiretapping
program. When two US senators asked the Office of the Inspector General of the
Intelligence Community earlier this year, “how many people inside the
United States have had their communications collected or reviewed under the
authorities granted by section 702” of the FAA, the NSA fired back by
saying even responding to that inquiry would be against their rules.
A “review of the sort suggested would itself violate
the privacy of US persons,” Inspector General I. Charles McCullough wrote,
adding that the request would be “beyond the capacity” of his office
and that “dedicating sufficient additional resources would likely impede
the NSA’s mission.”
“The overwhelming power of the state secrets privilege
makes it nearly impossible for any US citizen to show that he or she was the
subject of surveillance, while the inability to prove he or she has been spied
on prevents any citizen from having standing to challenge the program,” Frank Matt
explains the case this week for the Arab American Institute.
But although the NSA won’t come close to offering any
details, the texts of the FISA amendments open up literally any American
citizen to government surveillance as long as their emails, phone calls or
instant messages are sent to someone abroad, whether it’s a cousin in Canada or
an employee working overseas.
“Rather than target its surveillance power at a specific
person thought to be the agent of a foreign power, the government can target
its surveillance power at a group of people, a neighborhood, a country or a
geographic region,” the ACLU insists.
Rep. Dennis Kucinich (D-Ohio) argued on the Hill last
month against reauthorizing the FAA, telling his colleagues in Congress,
“Everyone becomes suspect when big brother is listening.” Now before any
Americans can try to say that the surveillance allowed under those 2008
amendments violate the US Constitution, they need to convince the court that
they should be able to bring the matter up.
On Monday, the Supreme Court will hear oral arguments
regarding Clapper v. Amnesty International, a case being fought to
show that opponents of the FAA have a right to bring their suit up in
Washington. Those that call the warrantless wiretapping illegal will have a
hard case to fight, though, given that they can’t prove they’ve been watched.
“Unfortunately, the government has tried to block the
courts from ever reaching that constitutionalissue, arguing that unless the
plaintiffs can prove they will be monitored (which is impossible, since the
list of who is monitored is classified), they cannot sue,” former NSA
agents-turned-whistleblowers Bill Binney and J. Kirk Wiebe write in an op-ed
published in Politico this week.
The US Second Circuit has already ruled in Clapper
that the plaintiffs — attorneys, journalists and activists from human rights
organizations — should be able to challenge the constitutionally of those
amendments. Because those parties cannot prove that they’ve been personally
subjected to the surveillance, though, it has been an uphill battle all the
while.
The Brennan Center for Justice out of the New York
University Law School notes, “given the nature of their professional work,”
the Second Circuit previously ruled that the plaintiffs had “a reasonable
fear that they were in fact subject to such surveillance and had to take costly
steps to protect the confidentiality of their communications.” That’s
enough, they say, to show that the plaintiffs “satisfied the required
showing of a concrete injury resulting from the challenged amendments sufficient
to establish standing to sue and reversed the contrary finding of the district
court.”
“Because the identity of persons subject to surveillance
is a government secret, it is highly unlikely that any US persons could ever
show that they were in fact the subject of such surveillance. Accordingly, if
the plaintiffs-respondents in this case do not have standing, it is likely that
serious questions as to whethersurveillance conducted under the 2008 amendments
violate the First and Fourth Amendments will escape review altogether,” the center adds.
On their part, the ACLU agrees that the plaintiffs have
good reason to believe that they’ve been monitored under the 2008 amendments. “Some
plaintiffs communicate with people who have been the targets of surveillance or
other US government attention in the past,” the ACLU wrote in last month’s
brief, specifically bringing up clients whose jobs require them to, for
example, communicate with indigenous rights advocates in Columbia, or
corresponds with former CIA detainees for human rights research.
The ACLU adds that an appeals court panel already agreed
in 2011 that “plaintiffs have good reason to believe that their
communications, in particular, will fall within the scope of the broad
surveillance that they can assume the government will conduct,” and the US
Court of Appeals for the Second Circuit later refused the government’s attempts
to reverse that decision. Now if the Supreme Court can come to the same
conclusion, those plaintiffs — the ones who may or may not have ever been
surveilled — can finally challenge the constitutionality of the FISA
amendments.
“While it may seem like a minor step in the battle
against the abuses of FISA, the outcome of this case could have profound
implications for future civil liberties cases,” Frank Matt adds in his
article this week. equating the government’s defense of the FAA as “Kafkaesque
resistance.”
“Based on our combined six-plus decades of experience
working at the NSA, we are sure there is only one just outcome,” Binney and Wiebe
write to Politico. “The justices should let this case proceed, giving the
courts the opportunity to determine whether the executive and legislative
branches have gone too far.”
“The NSA cannot be trusted with this power. No agency
should be.”
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