Tuesday's decision by the Supreme Court in Clapper vs Amnesty Int’l reflects judicial formalism at its worst. The decision abandons fundamental rights and the courts' constitutional mandate, while placing government agencies above the law, so long as they commit their abuses in secret.
Clapper is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government all at once. 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. Several elements of the decision are disturbing, especially when viewed in a broader context beyond the case itself.
Most obviously disappointing is the result of the ruling, not only for the plaintiffs, but also anyone who uses the phone system or Internet.
A scandal in plain sight
The Clapper saga started with the Foreign Intelligence Surveillance Act, which was first passed in the 1970s to restrict domestic spying by government agencies. It was prompted by decades of abuses by the FBI, CIA, and other agencies that Congress investigated and found conducting "a sophisticated vigilante operation aimed squarely at suppressing the legitimate exercise of First Amendment rights of speech and association," including a documented government campaign to “neutralize” Martin Luther King, Jr. and other civil rights leaders.
In 2002, the Bush administration authorized the National Security Agency (the NSA) to begin a secret warrantless wiretapping program in clear violation of the FISA law. It remained secret, at one point prompting a dramatic intra-executive showdown and threats of a mass resignation by Justice Department officials under the Bush administration, until the New York Times exposed the program in late 2005.
Aside from generating an earthquake across Washington, the first results of the Times' expose included government threats to prosecute the journalists. Their only "crime" was exposing the public to an issue that should never have been secret in the first place. While prosecutors thankfully opted not to prosecute Lichtblau & Risen, others continued to face prosecution for pursuing transparency in the public interest.
In the middle of the 2008 presidential election race, Congress amended FISA to permit what the original statute had been passed to prohibit. Rather than require the agency to comply with the long-standing law, however, Congress instead watered down the law to allow the agency's abuses to continue.
Congress’ 2008 amendments to FISA doomed oversight. As the dissenting Justices in Clapper observed, the 2008 amendments allow NSA monitoring not only of agents of a foreign power, but also law-abiding Americans. Congress in 2008 also removed FISA’s original requirement for the NSA to identify specific targets and locations for surveillance, enabling the agency to conduct bulk collection, or dragnet surveillance. Finally, the 2008 amendments subsidized corporate crime, extending a corporate subsidy in the form of immunity from lawsuits alleging privacy violations, ensuring that telecommunications companies could continue facilitating unconstitutional surveillance without fearing lawsuits from a justifiably hostile public.
That was the context in which a group of activists, journalists, and lawyers among the most likely suspects for NSA surveillance filed suit.
Closing the courthouse doors
In the formalistic terms favored by contemporary jurists, the Clapper decision rejected the constitutional standing of the plaintiffs to challenge the NSA's program. In plain English, the Court threw the case out before addressing the merits, because the plaintiffs could not demonstrate that they, in particular, had endured harm.
Of course, as the dissent pointed out, the government has the authority to monitor the plaintiffs’ communications, and every motive to do so. The dissent also noted the NSA’s astounding capacity: the agency intercepts 1.7 billion emails and phone calls every day.
The majority opinion, in contrast, buried the Court's head in the sand.
Five Justices who decided the case argued that a secret court created by FISA imposes needed checks and balances on government abuses. Like their reasoning on standing, the argument holds no water, and appears obviously nonsensical in context: as the dissent observes, the FISA court is essentially a rubberstamp.
None of the Justices explored how secrecy inherently makes a mockery of the judicial process. The distinction between law and politics rests on stare decisis, the principle of adherence to the rules established in prior cases. Law requires consistency, which is impossible when the rulings themselves are secret.
Also absent from most commentary on Clapper is a recognition of how this decision could impact other cases challenging government abuses beyond surveillance.
Declaring that plaintiffs must somehow pierce the veil of government secrecy in order to challenge executive abuses before a court of law, as the Supreme Court did in Clapper, could tilt the jurisprudential field in the government’s favor on any number of government violations. For example, currently pending in the US Court of Appeals for the Second Circuit (from which the Clapper appeal emerged) is Obama v. Hedges, a case challenging domestic military detention without trial under the National Defense Authorization Act (NDAA) of 2012.
The Court thus invites agencies to evade judicial review, while also (no less than the absurd state secrets privilege) undermining judicial independence. From this perspective, Clapper undermines the role of the courts envisioned by the Founders of our Republic in the Federalist Papers No. 78.
Placing the NSA above the law
With the courts out of the oversight equation, not only the public, but even members of the Senate intelligence Committee, are kept in the dark.
Senators have sought information about secret FISA court rulings, only to be greeted with the NSA’s equivalent of a middle finger: the agency has preposterously claimed at times that it is unable to identify the number of Americans whom it has monitored, and that answering congressional questions (rather than the NSA’s surveillance itself) would compromise the privacy of monitored Americans.
The results? Earlier this year, Congress extended the 2008 amendments for another five years, ensuring that the NSA's wireless wiretapping program will continue into the next administration even though none of several crucial questions were ever answered.
As Senator Ron Wyden (D-OR), the leading voice for oversight on the Intelligence Committee, explained at the time:
This is the last opportunity for the next five years for the Congress to exercise a modest measure of real oversight over this intelligence surveillance law. It is not real oversight when the United States Congress cannot get a yes or no answer to the question of whether an estimate currently exists as to whether law abiding Americans have had their phone calls and emails swept up under the FISA law.
With the Supreme Court having abdicated its role, Congress must reverse its premature decision to extend the 2008 FISA amendments until 2018.
The Court's supposedly "conservative" majority
Five Justices in the Clapper majority are often described as "conservative," in distinction from the four supposedly “liberal” Justices who dissented.
But there is nothing conservative about their decision in Clapper. Ruling that courts must reject the standing of plaintiffs stymied by government secrecy is nothing short of radical, with implications that should disturb conservatives.
The fault line visible in yesterday’s 5-4 decision was not between a conservative majority and a liberal minority, but rather between a deferentialist insurgent majority and an independent moderate minority. Put another way, the majority’s decision would be predictable in a country like China, or the former Soviet Union, where courts are expected to defer to an imperial executive branch.
There was a time when America was different.