Supreme Court To Decide If President Can Watch Americans’ Every Move
ExposeObama
On October 29,the U.S. Supreme Court will {began to} hear oral arguments in Clapper v. Amnesty International. The Court will then decide whether Americans have standing to challenge a federal statute that permits the government to intercept their communications without suspicion of any crime,without a warrant,and with virtually no meaningful judicial oversight of any sort.
Our law firm had the privilege of filing an amicus curiae brief in the Clapper case on behalf of Gun Owners Foundation,Gun Owners of America,Inc.,U.S. Justice Foundation,Downsize DC Foundation,DownsizeDC.org,and the Conservative Legal Defense and Education Fund.
The case involves the 2008 FISA Amendments Act (“FAA”),which broadened the 1978 Foreign Intelligence Surveillance Act
(“FISA”). For years,FISA has permitted the gathering of “foreign
intelligence” outside the traditional legal safeguards associated with
criminal law enforcement. Even before the 2008 amendments,FISA has
allowed wiretaps so long as there was probable cause to believe that the
target of the surveillance was a foreign power,or agent thereof.
And,so long as the “target” is legitimate,all “incidental” information
that is picked up has been fair game,even if that includes the
surveillance of “U.S. persons” (a term which includes U.S. citizens) not
suspected of any wrongdoing.
Although
FISA is purportedly designed to gather foreign intelligence,seized
communications have been used in numerous criminal investigations and
trials,even though FISA is not subject (i) to the same “particularity
requirements” as traditional warrants (the who,what,where,and when),or
(ii) to any customary oversight by an independent court. The only
judicial checkpoint is the special Foreign Intelligence Surveillance Court (“FISC”),which has proven highly compliant with the wishes of the intelligence community.
Seeking
still more unfettered authority,the executive branch urged Congress to
pass FAA,which eliminates even the need for individual warrant
applications. The FAA removes judicial oversight,as FISC is stripped of
any substantive role in determining probable cause. Its only role is
to make sure “that the government has made the proper certifications” —
i.e.,that the right boxes have been checked. Further,under FAA,there is
no “ongoing judicial review” of approved surveillance. Instead,federal
executive officials police themselves.
As the Clapper plaintiffs in the U.S. Court of Appeals for the Second Circuit
put it,the government need only issue an “acquisition order” to capture
“[a]ll telephone and e-mail communications to and from countries of
foreign policy interest….” The government never challenged that
characterization of its power. Who knows — that may be exactly what
they have done,and if for one country,why not for every country.
The
secret nature of FAA-authorized surveillance enabled the government’s
remarkable claim that,because the plaintiffs could not demonstrate with
certainty that they had been the subject of surveillance,they had no
standing to bring suit to defend their Constitutional rights. If the
government wins on this point,the American people will be denied all
access to any judicial remedy for clandestine violations of their
Constitutional rights.
FAA is not the
first such assertion of the power of unlimited,unsupervised,warrantless
surveillance of Americans by the federal government. In January of this
year,the Supreme Court decided U.S. v. Antoine Jones,rejecting
the claim by federal agents that they could install and use a GPS
tracking device on a person’s automobile without a warrant,probable
cause,or even mere suspicion. The court ruled that,by surreptitiously
placing a GPS tracking device on Jones’ Jeep without a warrant,the
government violated the Fourth Amendment by trespassing on Jones’
property. This ruling,however,has not deterred the government from
tracking our movements without a warrant by means of the GPS chip that
the federal government has required to be placed on our cell phones.
The government claims that there is no trespass,and no reasonable
expectation of privacy,so the Fourth Amendment does not even apply.
Government-installed traffic cameras,security cameras,red light cameras,and plate-scan cameras already monitor us
on the streets and in other public places. Additionally,federal,state
and local governments are already publicly discussing their plans to
use increasing numbers of unmanned aerial drones to
follow us even on private property. Government agents already
interfere with our ability to travel,without,of course,any warrant or
suspicion of wrongdoing. TSA agents inspect our toddlers’ toys and
grandparents’ diapers at airports,rail stations,and bus terminals.
Also,local law enforcement conducts random “sweeps” and searches at
public transit locations,like subway stations,and stops vehicles at
checkpoints under the pretense of looking for drunk drivers,inspecting
drivers’ licenses,or conducting the increasingly popular “routine safety
check.”
Amidst this vast web of
random,suspicionless,warrantless searches and seizures,not only is our
privacy at risk,but just as important,our property. Property rights are
meaningless if they do not include the right to exclude others from
one’s property (especially the government). The Supreme Court correctly
ruled that,since Antoine Jones had a property right in his car,the
government was prohibited from trespassing on it to install a GPS
tracking device. Likewise,Americans should have property rights in the
location data emitted by their cellular phones and the content of their
phone calls and emails along with,of course,their tangible
“persons,houses,papers and effects.” And yet,all of these rights are
being eroded when balanced against the government’s purported interests
of “public safety” and “crime detection/prevention.”
Such
intrusions may be unprecedented in the United States,but they have not
been elsewhere. United States Supreme Court Justice Robert Jackson,a
close friend and confidant of President Franklin Roosevelt,served as the
chief prosecutor at the Nuremberg Trials. While in Germany, he was able
to learn first hand how the German people had lost their freedoms.
Upon his return,he became a champion of Fourth Amendment rights.
Justice
Jackson’s Executive Trial Counsel at Nuremberg,Whitney Harris,discussed
part of their shared experience in Germany in his book Tyranny on Trial,explaining
that,as with the U.S. Constitution,“[t]he Weimar Constitution contained
positive guarantees of basic civil rights. Chief among them were
personal freedom …inviolability of the home [and] secrecy of letters and
other communications….”
However,the Weimar Constitution also
contained an extraordinary provision,Article 48, “under which the Reich
President was authorized to suspend basic civil rights ‘if the public
safety and order in the German Reich are considerably disturbed or
endangered….’” In order to lay the predicate for this suspension of
rights,it is generally believed that the Nazis themselves set fire to
the Reichstag,which was followed the next day by a Presidential edict
that “[personal freedom ... inviolability of the home [and] secrecy of
letters and other communications] are suspended until further notice
[and] violations of the privacy of postal,telegraphic,and telephonic
communications,and warrants for house searches,orders for confiscations
as well as restrictions on property,are also permissible beyond the
legal limits unless otherwise prescribed.”
Having
thus suspended the property rights of the German people,and attributing
all the nation’s problems to Communist terrorists,the Nazis began a
campaign of random searches and seizures in order to flush out
“Communist literature and illegal weapons.” Constitutional lawyer and
Second Amendment scholar Steven Halbrook explains the process in his
article,Nazi Firearms Law and the Disarming of the German Jews.
Two days after Hitler took power,the Berlin police,in response to a
shooting of a Nazi official,“closed off the street to all traffic while
at the same time criminal detectives conducted extensive raids in the
houses. Each individual apartment was searched for weapons.” A little
over two months later,“[h]aving disarmed and mopped up the ‘Communists”
with such raids …the Nazis …turned their attention more toward the Jews”
and in one case “[a] large force of police assisted by Nazi auxiliaries
raided a Jewish quarter in Eastern Berlin,searching everywhere for
weapons and papers.” In order to further “enforce this [campaign of]
repression,telephones were tapped and informants lingered in cafes.”
Upon his return to the high court,Justice Jackson wrote a ringing dissent in Brinegar v. United States,warning
of the dangers associated with the erosion of property rights. Ranking
Fourth Amendment rights as being of the highest order,Justice Jackson
wrote that “[a]mong deprivations of rights,none is so effective in
cowing a population,crushing the spirit of the individual and putting
terror in every heart. Uncontrolled search and seizure is one of the
first and most effective weapons in the arsenal of every arbitrary
government. And one need only briefly to have dwelt and worked among a
people possessed of many admirable qualities but deprived of these
rights to know that the human personality deteriorates and dignity and
self-reliance disappear where homes,persons and possessions are subject
at any hour to unheralded search and seizure by the police.”
Just
because the United States Constitution has no provision allowing a
President to suspend the Fourth Amendment and other civil liberties does
not mean that something akin to what happened in Nazi Germany cannot
happen here. Congress has already deferred to the arbitrary exercise of
unenumerated Presidential powers based on the wartime rationale of
necessity that could lead to the same dark and dangerous place. Too
many Americans think that it “can’t happen here.” No doubt,many Germans
felt the same way under the Weimar Republic. But Justice Jackson’s
warnings must not go unheeded.
The U.S. Supreme Court has already taken a first step on the road back to liberty by its ruling in Jones
that the Fourth Amendment protects the right of the American people to
possess their private property to the exclusion of the federal
government. The next step would be for the Court to recognize that the
People have the same property right to exclude the government from
seizing their private communications,however transmitted. In order for
the Court to do that,it must recognize that the lawyer and journalist
plaintiffs in Clapper have standing to seek judicial protection
of their proprietary interests in their private communications with
their clients and their information sources.
If
the Supreme Court denies the Clapper plaintiffs legal standing,then
there will be no judicial check upon the federal government’s voracious
appetite to devour the Fourth Amendment protection of our property
interests in our “persons,houses,papers,and effects.” If,on the other
hand,the Court grants legal standing,then the Clapper plaintiffs will
have a singular opportunity to urge the justices to heed Justice
Jackson’s warning that a government possessing the uncontrolled power to
search and seize the people’s property “cows” the people,“crushes” the
individual spirit,and “terrorizes” even the most stout-hearted amongst
us.
Bill Olson has practiced law in
the Washington,DC area for 36 years,and served in three positions in the
Reagan administration. Herb Titus taught constitutional law for 26
years,concluding his academic career as founding dean of Regent Law
School. They now practice constitutional law together,defending against
government excess,at William J. Olson,P.C. They can be reached at wjo@mindspring.com or followed on Twitter @Olsonlaw.
