Government Surveillance Cannot Be Challenged, Says High Court

The 2008 FISA Amendments Act permits the government to listen in on any of your phone calls and read your e-mail to or from anyone outside the country. In late February, the Supreme Court ruled that, if you object to this invasion of your privacy, if you find it a “search and seizure” violation of the 4th Amendment, you are denied any recourse of challenging the government in court.

The plaintiffs in the case — an alliance of human rights groups, journalists, lawyers and academics — argued that eavesdropping by the state could impair their work by compromising confidentiality, thus closing off contact with those outside the U.S. who know they are being spied upon.

Originating with the Bush administration and made standard procedure under Obama, the government and the like-minded Supreme Court have developed a reliable tactic to assure that the government may continue unimpeded and do as it chooses, often in total secrecy. The Court has repeatedly ruled that plaintiffs do not have “standing” to sue. In the case just decided, they cannot prove they have been damaged or deprived of rights by the government’s surveillance because they are prevented by government secrecy from acquiring the proof that they have been targeted by surveillance.

In the majority opinion, joined by Justices Roberts, Scalia, Thomas and Kennedy, Justice Alito wrote that because the plaintiffs “have no actual knowledge of the Government's … targeting practices”, they “merely speculate” that they may be targeted and, besides, the law “at most authorizes” surveillance; it doesn’t mandate it. In other words, Alito asks us to consider that there may be little or possibly even no surveillance going on. And secrecy sees to it that a litigant has no ability to prove otherwise.

By extension, we can expect that secrecy will prevent anyone from ever having standing to challenge the law and we see a Supreme Court that refuses to review the highly questionable constitutionality of a law of such dubious provenance that it was given birth to paper over the illegal wiretapping of the Bush administration.

The 1978 FISA law (the Foreign Intelligence Surveillance Act) had established a separate court from which the intelligence agencies were required to obtain warrants to wiretap suspect citizens’ communications with contacts outside the U.S. Beginning right after 9/11, the Bush administration decided it couldn’t be bothered with such encumbrances and began in secret to eavesdrop on supposedly international communications without warrants or any oversight.

A 2005 Pulitzer-winning investigation by two reporters at The New York Times exposed the illegal Bush spying.

A year later, newly retired AT&T technician Mark Klein revealed that the NSA had its own room at AT&T in San Francisco that received a splitter feed of every fiber-optic signal routed through its facilities — not just AT&T’s, but virtually those of all other telecom and internet companies. Klein knows because it was he who hooked up the connections.

Following up on that lead, USA Today reported that same year that MCI, AT&T and Sprint had all been granting “access to their systems without warrants or court orders”.

Rather than leading to prosecutions and impeachment, the ongoing post-9/11 panic resulted in the opposite: an after-the-fact blessing by Congress of all the misdeeds of the Bush government by passage of the FISA Amendment law of 2008, which immunized the telecommunication companies from prosecution and effectively scuttled the 1978 FISA law by no longer requiring the government to obtain warrants for its wiretaps.. Written by Vice President Dick Cheney and Senate Intelligence Committee Chair Jay Rockefeller, it gave the government greatly expanded powers to spy on the American people, paying no heed to the 4th Amendment.

In the primary campaign of 2008, Senator Barack Obama had pledged to filibuster against any pardon of the telecoms for surrendering the private data of citizens. But once nominated, not only did he fail to filibuster, he voted against other senators who moved to do so, and even voted for the bill itself, disingenuously saying that he was disappointed it did not “resolve all of the concerns that we have about President Bush's abuse of executive power”.

Save for torture, or so we are told, Obama would go on to perpetuate all of the Bush policies of spying, rendition, a hugely expanded and controversial drone war that his administration will not even admit exists, and a surveillance program grown to Brobdignagian scale.

At the end of last year, facing expiration, the FISA warrantless intercept law came up for extension in the Senate. The mildest of amendments, such as that proposed by Sen. Ron Wyden (D, Or) that sought only to require that the National Security Agency (NSA) report approximately how many Americans are being targeted, were voted down. President Obama had demanded passage of a “clean” bill with no amendments. He was backed by Senate Intelligence Committee chair Dianne Feinstein (D, Ca), entirely taken in by the government’s position that the public should be kept in the dark, and given to diatribes against fellow senators for proposing amendments would lead to “another 9/11”.

Thus did Obama get his way. The 2008 law was extended for another five years without a word of moderation and signed by Obama on 30 December. It kept company with another signing the next day of the despotic National Defense Authorization Act which allows the president incarcerate in military prisons without trial Americans merely suspected of terrorist connections.

The government assures us that only international communications relevant to terrorism are being monitored as the FISA Act prescribes, but those close to the facts, such as Michelle Richardson, legislative counsel of the ACLU, one of the plaintiffs in the Supreme Court case, assumes that essentially every call or e-mail sent abroad is vacuumed up. She said to The Huffington Post, "We think it's exponentially worse than any other wiretapping program because they are allowed [emphasis added] to do bulk collection and programmatic collection". Whatever is allowed will be used … and abused.

NSA whistleblowers have for years been trying to alert the public to surveillance that dwarfs Ms Richardson’s notions of worst wiretapping program because, quite apart from the FISA Act that nominally restricts eavesdropping to international traffic, the NSA has turned its surveillance eyes and ears on the U.S. and its citizens. Principal among those trying to make the public aware of what is happening is William Binney, a 32-year veteran of the NSA who left in disgust in 2001 but says he continues to have close contacts within the agency. “The Court is not living up to its oath to protect the Constitution” and the NSA is "violating the entire foundation of this country", he said in an interview, and in his view the violations have gotten worse under Obama.

Binney and others suspect that there are NSA collection points dotted around the nation, such as the “NSA room” at the San Francisco AT&T switching center. He says that, emboldened by the enormous gains in storage technology, the NSA decided not to bother with the filtering protocols that Binney himself had devised when at the agency, but rather to simply collect everything — every e-mail, every cell and landline phone call, every credit card billing record, Facebook post, Twitter tweet and Google search of everyone in the country. To warehouse all the collected data, NSA is building a massive complex in a remote town in Utah named Bluffdale, scheduled for completion this September.

The NSA complex at Bluffdale, Utah. Photo by "name withheld".
Binney, who says he was visited by the FBI at gunpoint, estimates that the NSA has already captured between 15 and 20 trillion communications, and is preparing to collect on the order of 5,000 exabytes — an exabyte is a 10 with 17 zeroes after it — of data. Wired magazine makes the point that “given the facility’s scale and the fact that a terabyte [1 trillion] of data can now be stored on a flash drive the size of a man’s pinky, the potential

amount of information that could be housed in Bluffdale is truly staggering” and Binney contemplates a day when a yotabyte — a 10 followed by 23 zeroes — of data could be reached.

What use will the NSA put to this Everest of data. Another NSA whistleblower, Russell Tice, says that if you were to use a word like “jihad” in an e-mail to a friend about world affairs, that will pop out of the NSA filters and could (or does) readily prompt its computers to pull up everything you have written, said, posted, tweeted, bought or searched for over the years, and then “graph” the data, their term for spider web like diagrams linking you to everyone you have been in contact with and, extended outward, everyone your contacts have been in contact with.

Yes, but for someone who hasn’t done anything wrong, what’s the harm? Bill Binney again:

If “they have opinions about something that is unacceptable … they become a target without even believing they are, so all the data is being assembled to retroactively examine their entire lives. So it's not a question of thinking they’re safe because … they don't believe they're doing anything wrong. It's the perception of the administration, not you…to see if you are acceptable on their terms, not yours".

So we now live in an America where all of us are constantly watched, by the millions of street cams sprouting everywhere and a secret complex in remote Utah, and yet the average American is complacent as the 4th Amendment turns to dust. The Supreme Court has signaled that the FISA Amendment law is insulated from ever coming up for constitutional review. And if the government will never admit to the existence of the NSA program of total surveillance, who can have “standing” in court to strike down this entirely illegal and unconstitutional surveillance.

The government has come up with a parallel world removed from the pesky strictures of the Constitution. It works so well. If they maintain that something does not exist, how could it be violating the Constitution?

In that Wired article Binney held index finger and thumb close together saying, “We are, like, that far from a turnkey totalitarian state”.