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.
@LibertarianCiti YOU CAN ONLY LAUGH AT HOW CREEPY they are. DO they not see how RIDICULOUS they are? whatever
@DLSPCDoctor Timm Wheeler is a predator pedophile, full dox http://t.co/RVIDf3C535
@n2kmaster @DLSPCDoctor Defamatory Libel is a criminal offence in Canada, #MichaelBabcock. You planning to move too? #RCMP
I would like to add an additional point of discussion which is that if congress didn’t want the supreme court to weigh in on the law they could have established an appellate exception to it. The supreme court is basically an appellate court for all federal courts in which congress can also decide the path the appeals process takes to the supreme court. I think if congress wanted to protect its law it could have established an appellate exception which would give lower courts the final jurisdiction over the law. I believe this was done after the civil war where congress feared the supreme court would strike down convictions against former confederates. This would be interesting to look up and prove that the supreme court’s supposed final say on a law is really only a grant from the congress itself.
@onetenther You bring up an interesting point. There is considerable confusion over just what the “exception clause” means. The sentence in question reads “In all other cases before mentioned, the supreme court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make.” One interpretation is like you suggest is that congress can strip the Supreme Court of its appellate powers whenever it so desires. Supreme Court decisions agree with this interpretation.
I favor an interpretation derived from the written records taken during the Constitutional Convention that include a previous version of this clause. From that it is clear that the “exceptions” mean that congress can give the Supreme Court original jurisdiction with regard to any legislation where the Constitution gives it only appellate authority. The purpose was to speed up the process not strip the court of judicial authority.