Supreme Court places National Security Agency above the law

by Samantha A. Peetros, BORDC

Yesterday, the US Supreme Court (SCOTUS) decided, in a monumental 5-4 case, that the secrecy of government surveillance can perversely insulate dragnet warrantless wiretapping scheme from judicial review. In one fell swoop, the case effectively invites the government to continue spying on law-abiding Americans en masse, renders the judiciary institutionally complicit in constitutional violations, and places the National Security Agency (NSA) above the law.

(Read the full decision online)

The NSA’s warrantless wiretapping program caused an earthquake when first revealed in 2005, by New York Times journalists who risked prosecution to alert the public to a secret government scheme to wiretap the entire phone system and the Internet.

Having previously prompted threats of a mass resignation by Justice Department officials under the Bush administration, the program was sensibly struck down as unconstitutional by multiple federal courts, only to be reversed on appeal. Today’s decision allows government surveillance to continue in secret, without meaningful checks and balances.

While five Justices claimed that alternative sources of review are available, their finding buries the court’s head in the sand. For instance, SCOTUS defers to the secret FISA court, which according to the Director of National Intelligence, has previously found parts of the NSA’s program unconstitutional. Yet despite repeated requests, even Congress does not know the details of that judicial decision, let alone whether and how the program has been modified to satisfy constitutional limits.

According to BORDC’s Shahid Buttar:

The Clapper decision is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government. By allowing executive secrecy to insulate violations from review, five Justices of the Supreme Court have effectively killed what shreds once remained of the Fourth Amendment. Every  American should be gravely concerned, and anyone who still considers America “the land of the free” should carefully reconsider their assumptions.

Congress must reverse its premature decision to extend the Foreign Intelligence Surveillance Act (FISA) to provide the check on executive abuses that the Court has abdicated.

Buttar has written about the NSA’s warrantless wiretapping scheme since Congress amended the FISA statute in 2008, for sources including Huffington Post.

BORDC has covered more recent developments, including the recent re-authorization of the 2008 FISA amendments by Congress.