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The Obama Administration wants the Supreme Court to dismiss an American Civil Liberties Union (ACLU) challenge to the Foreign Intelligence Surveillance Act (FISA) Amendments Act, an act passed in 2008 that ACLU attorneys contend “allows dragnet surveillance of Americans’ international communications with none of the safeguards that the Constitution requires.” It filed a petition to the Court asking for an appeals court ruling that permits the ACLU to challenge the law to be overturned.
The Justice Department (DoJ) argues that the plaintiffs in the challenge do not properly establish there could be any “imminent” or “future injury” from an “acquisition” of communications. The DoJ does not find the fear that plaintiffs might have their communications acquired abroad credible because there are other means available for acquiring communications of people outside the United States and they may not use authority granted to the government under the FISA Amendments Act. And, finally, the DoJ does not think that plaintiffs had sustained any “present injury” from “fear that the government will intercept their communications.”
The ACLU’s challenge specifically focuses on section 702(a), which allows the Attorney General and Director of National Intelligence to “authorize jointly, for a period of up to 1 year from the effective date of authorization, the targeting of person reasonably believed to be located outside the US to acquire foreign intelligence information.”
The ACLU contends the provision “does not require the government to demonstrate” that the “surveillance targets are foreign agents, engaged in criminal activity or connected even remotely to terrorism,” when seeking to obtain a “mass acquisition order.” The government can get such an order “without identifying the people (or the group of people) to be surveilled; without specifying the facilities, places, premises or property to be monitored; without obtaining individualized warrants based on criminal or foreign intelligence probable cause and without even making a prior administrative determination that the acquisition relates to a a particular agent or a particular foreign power.” Thus, it is unconstitutional and permits warrantless wiretapping.
According to the ACLU, in March 2011 “a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that the plaintiffs do, in fact, have the right to challenge the constitutionality of the law.” And, “in September, the full Second Circuit rejected the government’s request for reconsideration of that ruling.”
The following (in addition to the ACLU) are pushing this challenge: Amnesty International USA; Global Fund for Women; Global Rights; Human Rights Watch; International Criminal Defence Attorneys Association; The Nation Magazine; PEN American Center; ServiceEmployees International Union; Washington Office on Latin America.
Journalist Naomi Klein, reporter for The Nation, is a plaintiff. She supports the challenge because it endangers her “professional contacts.”
I frequently send emails and call to foreign countries, simply staying in touch with friends whom I have met in my travels. For example, I email an Iraqi woman who served as one of my translators. At one point her brother had been detained because of his political activity in Iraq. Her brother is a member of a Sunni political group and at one point he had been detained. She and I corresponded about her brother, why he was being held and what to do about it. I worried that these conversations might also put her at risk if U.S. surveillance continues to be conducted without meaningful oversight.
Defense attorneys Scott McKay and David Nevin are signed on as plaintiffs too. They worry confidential communications with clients are currently in jeopardy:
…We have recently joined the ACLU’s John Adams Project, which was formed to assemble civilian defense teams to assist in the representation of Guantanamo detainees at their military commissions. As part of that Project, we have offered to represent Khalid Sheikh Mohammed, whom the government accuses of masterminding the 9/11 attacks. Our offer of representation has required us to be in regular correspondence with Mohammed’s military defense counsel and to visit Guantanamo on more than one occasion. Our work may require us to correspond with potential witnesses about sensitive information, making us even more susceptible to improper government surveillance…
When President Barack Obama was running for election in 2008, he voted for the FISA Amendments Act. Though he had offered criticism of the National Security Agency’s (NSA) warrantless wiretapping program, he claimed the Act, “firmly” reestablished “basic judicial oversight over all domestic surveillance.” He said, “Given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay.”
That was not all too different from then-President George W. Bush, who stated, the bill “allows our intelligence professionals to quickly and effectively monitor the plans of terrorists abroad, while protecting the liberties of Americans here at home.” That is why the ACLU concluded in its report on how the Obama Administration had fared on civil liberties during its first 18 months:
…[C]andidate Obama made clear that his objection was not to warrantless surveillance, but rather to warrantless surveillance without congressional approval. And over the last eighteen months, President Obama’s administration has defended the FISA Amendments Act in the same way that the last administration did so: by insisting that the statute is effectively immune from judicial review.
The request to dismiss the challenge shows nothing has changed. Obama does not want the Supreme Court to hear the ACLU’s challenge. He does not want to risk the Court determining any part of the FISA Amendments Act is unconstitutional. That is why the Justice Department is asking the Supreme Court to overturn an appeals court ruling that kept the ACLU’s challenge alive.
The FISA Amendments Act expires on December 31 of this year. Congress will have to go through the motions of considering renewal. The charade will likely bear a striking similarity to the charade citizens witnessed when the PATRIOT Act was renewed in May of last year.
Liberals were largely silent. Congressional leadership fought to shut down any debate in the House or Senate. A few Senate Democrats like Sen. Mark Udall and Sen. Ron Wyden and a Republican, Senator Rand Paul, raised objection and tried to amend the PATRIOT Act. They even tried to block certain measures. But, the senators were unable to stop the bill from ultimately being signed.
The overwhelming bipartisan national security consensus is that the FISA Amendments Act is necessary to stop any threats to the American homeland. That assertion does not come with any concern for whether it allows for warrantless wiretapping or not. The consensus is FISA and all amendments are on the whole good tools to have for fighting “terrorism,” despite any unconstitutional imperfections.
It is an election year. The Obama Administration could wait until after the election or it could bring the Act up for renewal before. Either way, warrantless wiretapping will not be made an issue by anyone other than Ron Paul or those presidential candidates running in the election, who aren’t Obama, Newt Gingrich, Rick Santorum or Mitt Romney. So, the Administration has nothing to fear.
The liberals, who have the ability to make this an issue because Obama needs them to win re-election, won’t make this an issue if the renewal of the Act is brought up for a vote during the summer or fall. They are just as gutless and timid as Obama when it comes to taking political risks. If they made it an issue, they would be whipped into shutting up like they were when health reform was being passed and single-payer health care then the public option were taken off the table.
The courts are one of the few hopes America has for keeping civil liberties from being fully eviscerated. But, since the Obama Administration doesn’t want to permit judicial review, there isn’t much hope of the judicial branch being able to act as a proper check to executive power. And so, the policies of the Bush Administration that were condemned as being hallmarks of an imperial presidency are destined to continue, especially since those, who are well aware of the perils and pratfalls of the Act, stay silent and do nothing and let the Obama Administration go unchallenged.
23 Comments
“Dismiss” or “overturn”? Overturning requires the Supreme Court to hear the question. The question is apparently whether the plaintiffs have standing. That is a tricky one, I think, but IANAL. bmaz, Cynthia, some clarity on this.
It seems to me that while the correspondents of some of the plaintiffs might be harmed, it will be difficult to show harm to the plaintiffs themselves unless they have already been harmed.
This is judicial review of the issue of standing as best I can tell.
You aren’t really suggesting anything different than what is in the DoJ’s filing to the Supreme Court (which I linked to).
Secondly, the ACLU uses “dismiss” and “overturn” interchangeably so I do too. Their headline for their story is, “Obama Administration Asks Supreme Court to Dismiss ACLU Challenge to Warrantless Wiretapping Law.” The first sentence of the story is, “Today, the government asked the Supreme Court to overturn an appeals court ruling that allowed our lawsuit challenging the constitutionality of the 2008 FISA Amendments Act to go forward.”
To be clear, Kevin, specifically “who” are those, ” …who are aware of the perils and pratfalls (pitfalls?) of the Act, (who) stay silent and do nothing …” (although “pratfalls” does have a ring of cosmic comedic “justice” about it).
This “clarity”, the naming of names, is very important to understanding “why” things continue as they do.
And yes, the issue is one, essentially, of “standing”, and THIS is where the courts MUST rise to the challenge and not simply allow the unitary executive to hide behind “national security”. Let every judge and justice ponder the Dred Scott decision and make the proper connection …
It is morally incumbent upon individual justices and judges, who have both the power and, one hopes, the understanding, to thwart an out-of-control executive. It is not merely a “Consititutional” obligation which the highest officers of the courts are bound by … it is an obligation to actual justice AND the Rule of Law.
Thank you, Kevin, a superb and very important post.
I hope that it might be front-paged.
It deserves no less, in my opinion.
DW
But, hey, Obysmal is definitely still the lesser of the two evils……… so vote early and often this November.
Now, where did I put the scotch.
The Supremes must overturn, or set aside, the Second Circuit decision determination and finding of standing in order to dismiss on standing grounds. That this decision came out of the 2nd Circuit is notable, as they are fairly conservative, especially on law and order/nat sec issues. That said, the Roberts Court is notoriously conservative on standing questions so I dunno where this will go. I have not read it is a while now, but my recollection is that the 2nd made out a pretty decent argument for supporting finding standing. It is a difficult issue in these kinds of cases and the government plays on that heavily. No clue how SCOTUS will go; if I had to bet, I bet they reverse and find no standing.
Isn’t this the law that also granted retroactive immunity to the telephone companies for seven years’ worth of helping Cheney and Bush illegally spy on the American people? The law that, when it was a bill, Presidential candidate Barack Obama said he would filibuster it when it came up in the Senate? The bill on which he then turned around and voted to end the filibuster and grant the telephone companies retroactive immunity?
That law?
is he really the lesser evil when contrasted with ron paul?
if you think he is, please tell us why it is you think that.
because as i read you, you prefer the imperial president. and the suspension of all constitutional safeguards to the us citizenry.
and you prefer the maintenance of perpetual war[i.e., militarism].
are you a kossack, by the way. because those are the kos preferences. as i read that site[i.e., any democratic fascist bastid is preferable to a republican fascist bastid].
Excellent post, Kevin. How frustrating his Presidency has been …
Recall that Senator Lying Oilbomber – Oilbomber the Lying Candidate – promised to vote to oppose the gutting of FISA and the related retroactive immunity for Big Telco – which had been (and continues) Data-Mining the Phone Calls and Internet Correspondence of American Citizens.
Of course, he voted to gut it, anyway.
Now here’s the slippery weasel pulling another Civil Rights destroying Stunt.
It will be interesting to see what the Right Wingnut Stacked Roberts Court will do to him or do for him.
I bet they will cover for his ass, because the MOTU command the evisceration of the Civil Rights Of All Americans.
Though they surely would relish sticking it to him if they could.
Amerika’s march toward fascism continues.
I’m convinced. Ron Paul’s a lesser evil. Like all of them. ‘k?
I agree. Fascism doesn’t announce itself. It’s incremental, it creeps in, and by the time U.S. citizens start to notice, they will be living in the horror of it all.
Why on earth did you believe anything he said, or what any of them say?
Watch Casablanca again — you know, the Greatest Generation Gospel — and point to any scene or any moment that isn’t thoroughly loaded with deception and nothing but deception. The end justifies the means. OTOH, it’s a masterpiece.
Yet those are fasces behind the House Speaker’s chair and on the reverse of the old Mercury dime.
Given the state of the Congress, or the Federal government in general, that would be ‘feces’.
Shitting on us 24/7.
Do we need an Amendment which gives any citizen standing to challenge the Constitutionality of any government action in court whether or not they are personally harmed by those actions?
I think we do.
To often the Evil Ones use the question of “standing” to undermine our rights.
Shame on you, Kevin…for blaming our heroic, beleaguered, preznint, as he fends off the outrageous attempts by the all-powerful republicans to thwart his unceasing efforts to protect us from the predations of the corpo-fascists.
His asking for this is nothing: nada: zippo…in fact, it’s part of his “Russian Front” strategy (which he has so successfully employed for the three years and change) of luring them into power and then destroying them pretending to be one OF them. Has there ever been a cleverer champion of true progressive causes?
I sleep better at night just thinking about how, in the mid-terms, he deceived all of his enemies by fooling the GOP into thinking that they’d won the House of Representatives, and gotten within 6 blue-dog democrats of controlling the Senate, as he, political wizard that he is, appears to have squandered more political clout than any chief executive in memory. It is, of course, all part of the great plan of this Machiavelli-with-morals, and when he wins a second term, then, by God, the conservative fur will fly…………………………..I just betcha.
Whew! Now I feel much better. I thought we were already there. Reckon how long we’ve got before we should stop pretending that we have any “Constitutional Rights”?
Barack Obama is a fraud, a coward, and an incompetent.
I think so.
Who are you addressing?
Right next to the kool-aid.
FISA is just one of obama’s many civil and human rights travesties.