Glenn Greenwald comments on governmental use of secrecy to avoid Constitutional challenge to its warrantless wire-taping.
Both the Bush and Obama DOJ’s have relied on one tactic in particular to insulate its eavesdropping behavior from judicial review: by draping what it does in total secrecy, it prevents anyone from knowing with certainty who the targets of its surveillance are. The DOJ then exploits this secrecy to block any constitutional or other legal challenges to its surveillance actions on the ground that since nobody can prove with certainty that they have been subjected to this eavesdropping by the government, nobody has “standing” to sue in court and obtain a ruling on the constitutionality of this eavesdropping.
Amnesty International sued the government over this very strategy and…
The Obama justice department succeeded in convincing the five right-wing Supreme Court justices to dismiss a lawsuit challenging the constitutionality of the 2008 law, the FISA Amendments Act, which vastly expanded the government’s authority to eavesdrop on Americans without warrants. In the case of Clapper v. Amnesty International, Justice Samuel Alito wrote the opinion, released today, which adopted the argument of the Obama DOJ, while the Court’s four less conservative justices (Ginsberg, Breyer, Sotomayor and Kagan) all dissented. This means that the lawsuit is dismissed without any ruling on whether the US government’s new eavesdropping powers violate core constitutional rights.
So, the bottom line is this:
When the new 2008 FISA eavesdropping law was passed, all sorts of legal scholars debated its constitutionality, but it turns out that debate was – like the Constitution itself – completely academic. As both the Bush and Obama administrations have repeatedly proven, they are free to violate the Constitution at will just so long as they do so with enough secrecy to convince subservient federal courts to bar everyone from challenging their conduct.
Now, what’s all this crap I keep hearing, often from libertarians, that the government’s job is to protect our rights? Naively putting the government in charge of limiting its own powers is like putting the fox in charge of the hen house. The government couldn’t care less about your rights and when some politician suggests otherwise, he should be laughed off the stage.
P.S. As you may have noticed, I tend to post about almost everything Greenwald says in his column at The Guardian. Readers would do themselves a favor by skipping my posts and going directly to Greenwald’s column. Nonetheless, I will continue to highlight his writings because he is a rarity in his prolific even-handed criticism of the rapid expansion of the police state under both political parties. I am grateful that The Guardian gives him the means to reach a really broad audience.