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ACLU Blasts Supreme Court Rejection of Challenge to Warrantless Spying Without Proof of Surveillance

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In what’s being described as a Kafkaesque decision, the U.S. Supreme Court has ruled a group of human rights organizations and journalists cannot challenge the government’s warrantless domestic surveillance program because they can’t prove they are targets of it. The American Civil Liberties Union and a coalition of human rights groups and journalists filed the lawsuit in 2008 hours after President Bush signed amendments to the Foreign Intelligence Surveillance Act, which gave the National Security Agency almost unchecked power to monitor international phone calls and emails of Americans. We’re joined by the ACLU’s Jameel Jaffer, who argued the case before the Supreme Court. [includes rush transcript]

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This is a rush transcript. Copy may not be in its final form.

NERMEEN SHAIKH: A legal effort to block the government’s warrantless domestic surveillance program has failed after the Supreme Court ruled Tuesday a group of journalists, lawyers and human rights groups cannot challenge the law. In what’s been described as a Kafkaesque decision, the five-four conservative majority agreed with the Obama administration by concluding the plaintiffs lacked, quote, “standing” or jurisdiction to proceed, since they could not prove they had been targets of the secretive surveillance program. The American Civil Liberties Union and a coalition of human rights groups and journalists filed the lawsuit in 2008 hours after President Bush signed amendments to the Foreign Intelligence Surveillance Act, which gave the National Security Agency almost unchecked power to monitor international phone calls and emails of Americans.

AMY GOODMAN: Other plaintiffs in the case included the Amnesty international, Global Rights, Global Fund for Women, Human Rights Watch, PEN American Center, Service Employees International Union, the journalists Naomi Klein and Chris Hedges, and several defense attorneys. All the plaintiffs said they could be targets of the surveillance program since their work requires them to communicate with dissidents located outside the United States. In his opinion for the majority, Justice Samuel Alito wrote the challengers’ argument was based on a, quote, “highly speculative fear” that the government could target their communications.

Well, to talk more about the significance of the ruling, we’re joined by Jameel Jaffer, deputy legal director of the ACLU, fellow at the Open Society Foundations. He argued the warrantless wiretapping case on behalf of the plaintiffs before the Supreme Court.

Welcome to Democracy Now!


AMY GOODMAN: Well, you lost five to four. Talk about your response to the decision, Jameel.

JAMEEL JAFFER: Sure. Well, you know, obviously it’s a very disappointing decision. And in some ways, the fact that it was five to four makes it even more disappointing. It was a challenge to, as you said, the Foreign Intelligence Surveillance Act and specifically to the amendments that were made in 2008. And those amendments essentially allow the National Security Agency to engage in dragnet surveillance of Americans’ international communications, so it’s a very broad surveillance statute.

AMY GOODMAN: National Security Agency is agency—

JAMEEL JAFFER: Engages in—

AMY GOODMAN: Larger than the CIA.

JAMEEL JAFFER: Larger than the CIA, and it engages in signals intelligence gathering by monitoring phone calls, monitoring emails, monitoring other electronic communications. It’s a massive agency that has incredibly sophisticated surveillance authority now. And that agency uses this particular statute, the Foreign Intelligence Surveillance Act, to, among other things, gather Americans’ international communications, communications between people here in the United States and people outside the United States. So, it’s a very broad surveillance statute, arguably broader than any surveillance statute that Congress has sanctioned in the past. And we brought a challenge to it right after it was passed.

This was actually built on an earlier challenge to the warrantless wiretapping program, which is the program that President Bush inaugurated right after 9/11. So, right after 9/11, the National Security Agency was told, “You no longer have to seek warrants from federal judges in order to engage in surveillance of Americans’ international communications. You can do this on your own, without the involvement of federal judges.” That was against the law. It was against the Foreign Intelligence Surveillance Act as it was written at the time, and it was against the Fourth Amendment of the—to the Constitution. And we had challenged that. We had challenged it in a case called ACLU v. NSA. The Center for Constitutional Rights had also challenged it in a separate case.

Those cases wound their way through the system, and eventually the government retired the warrantless wiretapping program, went back to Congress and said, “You need to change the law to make it legal to do everything that we have previously been doing illegally.” And some of us naively thought that Congress would reject that proposal. Some of us even naively thought that there would be serious investigations into what was criminal behavior: the violation of the Foreign Intelligence Surveillance Act. Instead, what Congress did in 2008 is pass this broad law, the Amendments Act, which not only codified the power that President Bush had previously been exercising, but expanded the power of the National Security Agency to engage in this kind of surveillance. And again, now the surveillance is not individualized; it’s not targeted at people who are thought to be engaged in terrorism. It’s dragnet surveillance. That’s what the new law allows, surveillance of hundreds or thousands or even, theoretically, millions of people, who might not be suspected at all of having done anything wrong. So that’s the law we challenged in 2008. And the decision yesterday was effectively a decision holding that we don’t have the right to challenge the law.

NERMEEN SHAIKH: So could you explain, Jameel Jaffer, the grounds on which the decision was taken yesterday, the basis, standing grounds, and what it means for a likely future judicial review of the amendment?

JAMEEL JAFFER: Sure, right, right. I mean, so, when we brought the case, our claims were constitutional claims. We argued that the statute violated the First Amendment because it imposed a burden on expressive and associational activity without sufficient reason. We argued that it violated the Fourth Amendment, which generally requires warrants before the government engages in this kind of surveillance. And those were the arguments we made in the district court.

But the government came back and said the courts shouldn’t reach those arguments at all, the courts shouldn’t consider whether the law is constitutional or not, because the ACLU’s plaintiffs can’t show that they, themselves, have been monitored under this law. And, of course, nobody can show that they’ve been monitored under the law, because the government doesn’t disclose who its targets are.

AMY GOODMAN: Which is sort of why you’re challenging it.

JAMEEL JAFFER: Right. I mean, that’s part of the challenge. And the government is sort of creating this hurdle that is insuperable, this barrier to judicial review, which will ensure that nobody can ever challenge this kind of statute in court. And they were successful at the district court. We then appealed to the 2nd Circuit in New York, and we prevailed in the 2nd Circuit; it was a three-zero decision in our favor. The government then asked the Supreme Court to hear the case, and yesterday’s five-four decision against us is the result.

AMY GOODMAN: Let’s turn to National Security Agency whistleblower William Binney. He spent nearly 40 years at the NSA but retired about a month after September 11, 2001, due to concerns over unchecked domestic surveillance. He appeared on Democracy Now! last year.

WILLIAM BINNEY: After 9/11, all the wraps came off for NSA, and they decided to—between the White House and NSA and CIA, they decided to eliminate the protections on U.S. citizens and collect on domestically. So they started collecting from a commercial—the one commercial company that I know of that participated provided over 300—probably, on the average, about 320 million records of communication of a U.S. citizen to a U.S. citizen inside this country.

AMY GOODMAN: What company?

WILLIAM BINNEY: AT&T. It was long-distance communications. So they were providing billing data. At that point, I knew I could not stay, because it was a direct violation of the constitutional rights of everybody in the country. Plus it violated the pen register law and Stored Communications Act, the Electronic Privacy Act, the intelligence acts of 1947 and 1978. I mean, it was just this whole series of—plus all the laws covering federal communications governing telecoms. I mean, all those laws were being violated, including the Constitution. And that was a decision made that wasn’t going to be reversed, so I could not stay there. I had to leave.

AMY GOODMAN: We also interviewed Thomas Drake, another National Security Agency whistleblower, on Democracy Now!

THOMAS DRAKE: The critical thing that I discovered was not just the massive fraud, waste and abuse, but also the fact that NSA had chosen to ignore a 23-year legal regime, which had been established in 1978, called the Foreign Intelligence Surveillance Act, with a Foreign Intelligence Surveillance Court, and which, at NSA, during the time that I was not only at NSA but also in the military flying on RC-135s overseas during the latter part of the Cold War, it was a contract, the one thing you did not do. It was the prime directive of NSA. It was the—the—First Amendment at NSA, which is, you do not spy on Americans—

AMY GOODMAN: And what did you find?

THOMAS DRAKE: —without a warrant. I found, much to my horror, that they had tossed out that legal regime, that it was the excuse of 9/11, which I was told was: exigent conditions now prevailed, we essentially can do anything. We opened up Pandora’s box. We’re going to turn the United States of America into the equivalent of a foreign nation for the purpose of a—of dragnet, blanket electronic surveillance.

AMY GOODMAN: NSA former employee, Thomas Drake, was prosecuted. He was a whistleblower. And before that, William Binney. Jameel Jaffer, your response? And also, can you talk about President Obama himself, who, as senator in 2008, voted for the measure and has recently signed legislation in December extending the FISA amendment another five years?

JAMEEL JAFFER: Right. Well, when we filed this case, we filed it in 2008 under the Bush administration, and so the arguments we were facing in the district court were arguments developed by Bush administration attorneys. But the case, you know, has been in the courts now for five years, and over the course of that time, obviously, the Bush administration has been replaced by the Obama administration, but the arguments have remained the same. The Obama administration lawyers have adopted all of the arguments that the Bush administration made to try to shield this statute from judicial review.

And I think it’s important to recognize the limited proposition we were making. The case before the Supreme Court was not about whether this statute is constitutional or not. We hadn’t reached that stage. The only question before the Supreme Court is—or was: Should the courts actually evaluate whether this statute is constitutional or not? And this five-to-four decision yesterday was a decision that the court should not evaluate that decision. And that’s really a disturbing thing, that, you know, maybe there’s room for reasonable disagreement about whether a statute like this is necessary or lawful or constitutional, but those arguments should be heard in a court. The courts have a role to play in deciding whether this kind of surveillance is constitutional or not, and it’s very troubling that the courts are refusing to play that role.

NERMEEN SHAIKH: But you’ve also suggested that Justice Alito’s opinion seems to be based on the idea that a FISA court may at some point subject this law to constitutional review. What is a FISA court?

JAMEEL JAFFER: Right. So there is a—there’s a passage in Justice Alito’s opinion for the court that suggests that the result of yesterday’s decision isn’t that the law will be altogether immunized from judicial review. And he points to this FISA court system, this secret court system in which judges selected by the chief justice of the Supreme Court hear government proposals for surveillance. So there is this secret court system that most Americans don’t know about.

AMY GOODMAN: Where is it? Where are these courts?

JAMEEL JAFFER: It’s in Washington, D.C. They meet—they used to meet in the Justice Department building. My understanding is they have their own building now. It’s 11—

AMY GOODMAN: Secret building?

JAMEEL JAFFER: —eleven judges. They meet. They meet in secret. Only the government appears before them. They don’t customarily publish their decisions. And so, for Justice Alito to suggest that this is a sufficient check against the possibility of abuse or a sufficient system to ensure that our laws, like the Foreign Intelligence Surveillance Act, are actually constitutional, you know, obviously I think that that is beyond wrong. It’s—the idea that the Fourth Amendment will be protected in secret with secret opinions and only the government appearing before the court, I think is an idea completely foreign to the Constitution. And obviously, you know, four justices at least agreed with that.

AMY GOODMAN: Can I just ask very quickly what it was like to argue this before the Supreme Court? And also talk about those in the minority.


AMY GOODMAN: Interestingly, Elena Kagan, who was President Obama’s attorney, right, solicitor general—


AMY GOODMAN: —who argued on behalf of the administration before the Supreme Court.

JAMEEL JAFFER: That’s right. So, Justice Breyer wrote the dissent. Justice Kagan, Justice Sotomayor and Justice Ginsburg joined it, so four justices in dissent. I think it’s a very powerful dissent, but unfortunately it is a dissent.

You know, as to your other question about what it was like to argue it, you know, honestly, the argument itself was encouraging. There were statements made by Justice Kennedy and Chief Justice Roberts of the argument that suggested that they were at least to some extent sympathetic with the position of the plaintiffs. And it’s a little bit hard to explain how you can get from some of those statements made at argument to the decision that Justice Alito wrote and issued yesterday. Justice Kennedy, for example, said at oral argument that he thought it would be malpractice for lawyers not to take measures to protect against the possibility of surveillance by the NSA. It’s hard to understand how you can believe that but also sign onto an opinion that says that lawyers who take those measures are being paranoid or inflicting this cost on themselves. But, you know, that’s the nature of oral argument: It’s always very difficult to predict.

NERMEEN SHAIKH: Well, one of the plaintiffs in the case, author and journalist Chris Hedges, wrote about the decision that it’s a very depressing one, “but one that has become routine in a court system that when faced with what the government insists are matters of national security writes lengthy opinions about why the courts cannot defend the rule of law.” Can you talk about how this decision fits into a wider range of decisions made recently?

JAMEEL JAFFER: Well, I think that Chris Hedges is right, that 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. Different—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. And that is a disturbing thing that ought to be of concern to everybody.

AMY GOODMAN: Jameel Jaffer, we’re going to go to break, but when we come back, I want to ask you about drones, because it looks like Brennan—the vote for him to be the director of Central Intelligence will be tomorrow, but Rand Paul, the tea-party senator, is threatening to filibuster. Jameel Jaffer argued the case before the Supreme Court about a group—on behalf of a group of human rights organizations and journalists that led to the Supreme Court decision saying that this group cannot challenge the government’s warrantless wiretap decision. This is Democracy Now! We’ll be back with him in a minute.

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