In a five-to-four split decision, the Supreme Court ruled that, in effect, no citizen may challenge the constitutionality of any of the executive orders, or laws passed by Congress, that violate democratic rights under the pretext of the “war on terrorism.”
The decision was in response to a lawsuit filed by the American Civil Liberties Union (ACLU), Amnesty International, Global Rights, Global Fund for Women, Human rights Watch, PEN American Center, Service Employees International Union, journalists Naomi Klein and Chris Hedges, and several defense attorneys.
Their suit challenged a 2008 law that gave the National Security Agency (NSA) unchecked power to monitor all international telephone calls, emails, or any other electronic communications of all US citizens with no warrants or stated reasons for surveillance needed.
The plaintiffs charged that these sweeping powers violated their First Amendment rights of free speech and association, and their Fourth Amendment rights against unreasonable search and seizure.
In a ruling worthy of a Kafka novel, the majority of the court said the plaintiffs could not challenge the constitutionality of the law because they could not prove that they had been the targets of surveillance under the law.
Of course they couldn’t, because the NSA keeps secret which citizens it is spying on.
Therefore, the court “reasoned” that the plaintiffs had no “standing” to even bring the matter up.
Thus the constitutionality of the law and similar laws will never be ruled on by the Supreme Court, or any other court.
In a February 26 New York Times editorial, entitled “Unbridled secrecy”, the paper wrote that, “The Supreme Court severely damaged the rule of law” by its decision.
This editorial, as well as the split vote in the Supreme Court, reflects differences in the ruling class over how far to use the “war on terror” to violate the constitution.
This split has nothing to do with the squabbles between the Democrats and Republicans over how much to slash the social wage of working people, currently revolving around the federal budget.
The majority of the Supreme Court concurred in its ruling with the Obama administration’s arguments, reflecting the views of a large majority of Democrat and Republican politicians.
Jameel Jaffer, who argued the case for the ACLU before the court, said after the ruling that the 2008 statute is “a very broad surveillance statute”. The statute itself grew out of an earlier ruling made by the Bush administration in the immediate aftermath of the September 11, 2001 terror attacks.
Jaffer said: “The National Security Agency was told ‘You no longer have to seek warrants from federal judges in order to engage in surveillance of American’s international communications. You can do this on your own…’ That was against the law.”
At the time, the ACLU challenged the ruling, which slowly wound its way through the courts. Finally, the Bush administration went to Congress to ask it to pass the statute, making legal what it had been doing illegally for years.
The 2008 law was passed with overwhelming bipartisan support. The Obama administration has been operating under it since. It said the courts had no rights to judge its actions or the 2008 law, a stance the Supreme Court has now upheld.
It should be noted that the NSA is much larger than the CIA. It operates a huge bank of supercomputers capable of listening in on all electronic communications, at least of US citizens, and probably much of the world. Just what its capabilities are, of course, is a state secret.
It will have read and analysed this “Letter” as soon as I send it off, and placed it in their file about me before the Green Left Weekly editor will have read it.
But the spying goes well beyond the 2008 law. William Binney, who worked for the NSA for 40 years, retired from the agency a month after 9/11 due to concerns about unchecked domestic surveillance.
Last year, he appeared on Democracy Now!, where he said: “After 9/11, all the wraps came off for NSA, and ... between the White House and NSA and CIA, they decided to eliminate protections on US citizens and collect on domestically from [AT&T] … probably on average, about 320 million records of communications of a US citizen to a US citizen inside this country …
“At that point, I knew I could not stay, because it was a violation of the constitutional rights of everybody in the country. Plus it violated … all the laws covering federal communications governing telecoms.”
Another former NSA official became a whistleblower. In an Democracy now! interview, Thomas Drake said: “The critical thing that I discovered was not just the massive fraud, waste and abuse [he made public], but also the fact that the NSA had chosen to ignore … the prime directive of the NSA. It was the first amendment at NSA, which is, you do not spy on Americans.”
After the Supreme Court decision closed the door to any legal challenge to all these executive orders and laws, Hedges, one of the plaintiffs, wrote that the decision is “one that has become routine in a court system that in ['national security' cases] writes lengthy opinions about why the courts cannot defend the rule of law”.
Jaffner concurred, saying “there is a broader pattern here in which the courts are abdicating their role under our constitutional system. They are supposed to be ensuring that the government’s national security policies are consistent with the Constitution.
“Instead what’s happening is many of these challenges are being thrown out at the threshold [before ruling on the constitutionality of them]. There are different reasons. Sometimes it’s standing. Sometimes it’s state secrets. Sometimes it’s immunity.
“But the common thread is that all of these cases are being thrown out even before the courts reach the merits.”
I would add, no matter what the courts rule, if the powers-that-be have the capability to spy on everyone, and they have those big banks of supercomputers that can check on who knows how many millions of communications per second they will do so, whether allowed by law or not.
[Barry Sheppard was a long-time leader of the US Socialist Workers Party and the Fourth International. He recounts his experience in the SWP in a two-volume book, The Party — the Socialist Workers Party 1960-1988, available from Resistance Books. Read more of Sheppard's articles.]