Supreme Court Shields Warrantless Eavesdropping Law

By Glenn Greenwald, Guardian UK

27 February 13

he 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. The background of this case is vital to understanding why this is so significant.

One of the most successful government scams of the last decade has been to prevent any legal challenges to its secret surveillance programs. 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.

The Bush DOJ repeatedly used this tactic to prevent anyone from challenging the legality of its eavesdropping on Americans without the warrants required by the FISA law. That's another way of saying that the Bush administration removed their conduct from the rule of law: after all, if nobody has standing to obtain a court ruling on the legality or constitutionality of their conduct, then neither the law nor the Constitution constrain what the government does. Simply put, a law without a remedy is worthless. As Alexander Hamilton put it in Federalist 15:

"It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation."

Thus did the Bush DOJ exploit their secrecy extremism into a license of lawlessness: they never had to prove that even their most radical actions were legal because by keeping it all a secret, they prevented anyone from being able to obtain a ruling about its legality.

The Obama DOJ has embraced this tactic in full. In 2008, the Democratic-led Congress (with the support of then-Sen. Barack Obama) enacted the so-called FISA Amendments Act, which dramatically expanded the government's warrantless eavesdropping powers beyond what they had been for the prior 30 years. The primary intention of that new law was to render the Bush warrantless eavesdropping program legal, and it achieved that goal by authorizing the NSA to engage in whole new categories of warrantless surveillance aimed at Americans.

Since its enactment, the Obama administration has been using that massively expanded eavesdropping authority to spy on the electronic communications of Americans without the need to obtain specific warrants (the law simply provides that the government must periodically obtain court approval for their general methods of eavesdropping, but not approval for their specific eavesdropping targets). At the end of last year, the Obama administration relied on overwhelming GOP Congressional support to extend this law for another five years without a single reform.

Immediately upon enactment of this new law in 2008, the ACLU filed a lawsuit alleging that the warrantless eavesdropping powers it vests violate the First and Fourth Amendments. The plaintiffs in the case are US lawyers, journalists, academic researchers and human rights activists and groups (such as Amnesty) who work on issues of terrorism, foreign policy and human rights. They argued that they have standing to challenge the constitutionality of the eavesdropping law because its very existence impedes their work in numerous ways and makes it highly likely that their communications with their clients and sources will be targeted for interception by the NSA.

Because the Obama administration insists that it is a secret who they target for eavesdropping, neither these plaintiffs - nor anyone else - can prove with absolute certainty that they or their clients have been targeted. Taking a page (as usual) from the Bush DOJ, the Obama DOJ thus argued in response to this lawsuit that this secrecy means that nobody has "standing" to challenge the constitutionality of this law. With perfect Kafkaesque reasoning, the Obama DOJ says that (1) who we spy on is a total secret, and therefore (2) nobody has the right to obtain a judicial ruling as to whether what we are doing is legal or constitutional.

It is true that "standing" is an important doctrine: the requirement that a person first prove that they have been uniquely harmed by a law they want to challenge is not only necessary to fulfill the Constitution's limitation on the federal court's power (which confines their authority to actual "cases or controversies"), but it also prevents the Court from acting as a free-floating arbiter that rules on every political question. Courts can only rule on actual cases where one party has concretely harmed another.

The plaintiffs, however, have argued that although they cannot prove they or their clients and sources have been targeted, they are already being harmed by the existence of this law. They have ample reason to fear, they say, that the communications they have with their clients or sources are targeted for interception by the government. That means that this law forces them to refrain from communicating, or to expend substantial sums to travel across the world to meet in person with them, or that these clients and sources refuse to speak to them out of fear of being eavesdropped on. These concrete harms mean, they say, that they have standing to sue the government and obtain a ruling as to whether this law is constitutional.

In 2011, the Second Circuit Court of Appeals rejected the Obama DOJ's arguments and ruled that plaintiffs had standing to challenge the eavesdropping law given the concrete harms they are suffering from the mere existence of these eavesdropping powers. Rather than defend the constitutionality of the law, the Obama DOJ appealed this decision to the Supreme Court, and asked the court to dismiss the suit on standing grounds, without reaching the merits of the lawsuit.

Today, the Supreme Court, by a 5-4 decision, agreed to do exactly that. Justice Alito (joined by Scalia, Thomas, Roberts and Kennedy) fully embraced the Kafka-like rationale of the Obama DOJ. They rewarded the government for its extreme secrecy by using it to bar any challenges to the law; said Alito:

"[Plaintiffs] have no actual knowledge of the Government's §1881a targeting practices. Instead, [plaintiffs] merely speculate and make assumptions about whether their communications with their foreign contacts will be acquired under §1881a. . . . [Plaintiffs], however, have set forth no specific facts demonstrating that the communications of their foreign contacts will be targeted. Moreover, because §1881a at most authorizes - but does not mandate or direct - the surveillance that [plaintiffs] fear, [plaintiffs'] allegations are necessarily conjectural. . . . Simply put, [plaintiffs] can only speculate as to how the Attorney General and the Director of National Intelligence will exercise their discretion in determining which communications to target."

To call this argument ludicrous is to be generous. Every one of the plaintiffs here have been harmed by this eavesdropping law. In the course of their work, they have cause to communicate regularly with people whom the US government suspects are involved in Terrorism. When combined with the US government's technological abilities to spy on virtually every communication anywhere in the world, along with the government's proven propensity to eavesdrop on everyone it deems has anything to do with a terrorist group, it is a virtual certainty that the communications of these plaintiffs will be targeted, as Justice Breyer explained in dissent:

"In my view, this harm is not 'speculative'. Indeed it is as likely to take place as are most future events that commonsense inference and ordi­nary knowledge of human nature tell us will happen. . . . .

"Several considerations, based upon the record along with commonsense inferences, convince me that there is a very high likelihood that Government, acting under the authority of §1881a, will intercept at least some of the communications just described . . . . . The Government has a strong motive to conduct surveillance of conversations that contain material of this kind. . . . [T]he Government's past behavior shows that it has sought, and hence will in all likelihood continue to seek, information about alleged terrorists and detainees through means that include surveillance of electronic communications. As just pointed out, plaintiff Scott McKay states that the Government (under the authority of the pre-2008 law) 'intercepted some 10,000 telephone calls and 20,000 email communications involving [his client] Mr. Al-Hussayen.'

"To some de­gree this capacity rests upon technology available to the Government. See 1 D. Kris & J. Wilson, National Security Investigations & Prosecutions §16:6, p. 562 (2d ed. 2012) ('NSA's technological abilities are legendary'); id., §16:12, at 572–577 (describing the National Security Agency's capacity to monitor 'very broad facilities' such as interna­tional switches). See, e.g., Lichtblau & Risen, Spy Agency Mined Vast Data Trove, Officials Report, NY Times, Dec. 24, 2005, p. A1 (describing capacity to trace and to analyze large volumes of communications into and out of the United States)".

In sum, the US government has constructed a ubiquitous Surveillance State. It has repeatedly demonstrated that it intends to eavesdrop on the communications of exactly the people who have brought this lawsuit. To prevent them from suing on the ground that the US government's secrecy precludes them from proving with certainty that they are being targeted is to remove the US government's surveillance actions from the rule of law and the constraints of the Constitution.

But that is what the Obama DOJ just succeeded in convincing the five right-wing members of the Court to do: allow it to conduct its Surveillance State beyond the rule of law. What's the point of having a Fourth Amendment that bars unreasonable searches and seizures without probable cause warrants if the US government simply shrouds its unconstitutional eavesdropping with so much secrecy that it prevents anyone from challenging the legality of what it is doing?

The supreme irony here is that when Obama supported this 2008 eavesdropping law, it sparked intense anger among his own supporters as he ran for president. To placate that anger, he vowed that, once in power, he would rein in the excesses of this law that he oh-so-reluctantly supported. He has done exactly the opposite. He just succeeded in pressuring the Congress, with heavy GOP support, to extend this eavesdroppiong law for five years without a single reform. And now his Justice Department has used the five right-wing justices to completely immunize the law from judicial review (the only way the law could now be challenged is from a handful of extremely unlikely situations, such as if the US government criminally prosecutes the foreign clients and sources of these plaintiffs using information they obtained from the warrantless eavesdropping, and even then, the ability to challenge the law's constitutionality is far from certain).

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.

I'll be speaking next week in various cities about civil liberties in the age of Obama as well as the rule of law in the US. The cities include Portland, Brooklyn, Washington DC, Amherst, New Haven and Brockport. All events are open to the public; event information is here.

Karl Rove's War

By Michelle Cottle, The Daily Beast

25 February 13

By picking a fight with conservatives, did the Republican Machiavelli just ruin his career-or save it?

he storm broke February 6, when Rove, via the front page of The New York Times, debuted his newest venture, the Conservative Victory Project: an aggressive battle plan for the midterms that involves his super PAC, American Crossroads, intervening in the GOP primaries to try to ensure that the strongest, most electable candidates-not necessarily the most ideologically pristine ones-prevail.

The plan itself seems sound. The widespread sense among Republicans is that the party blew an opportunity to retake the Senate last year as a result of several not-ready-for-primetime candidates-Todd "legitimate rape" Akin being the most notable-winning primaries. "We messed up five absolutely winnable races," asserts former Bush spokesman Ari Fleischer (pointing to Indiana, Delaware, Nevada, Missouri, and Colorado). Staunch social conservative Ralph Reed, who keeps one foot in the GOP's purist camp and one foot in its pragmatic camp, is also quick to acknowledge the need for better quality control: "It does the pro-family cause no good to have flawed candidates with serious candidate performance issues that end up making our issues look, mistakenly in my view, like they are a vulnerability."

Unsurprisingly, however, the purist wing takes exception to all the finger pointing in its direction. And following the unveiling of Rove's project, it went ballistic. Tea Party types, as well as conservative radio hosts like Mark Levin and Steve Deace, lined up to take their swings at Rove for plotting to marginalize conservatives and, as a seriously miffed Deace told me, "rubbing our noses in it publicly." In The New York fricking Times, no less! "There will be no fixing this," asserted Deace. "The civil war has been brewing in this party" for a couple of years now, he said, and people are operating with "short fuses." "What Karl is providing is a face to our frustration."

As the Karl-versus-conservatives story line took hold, Rove launched a Fox News apology tour, hopping from show to show, explaining to Bill O'Reilly and Sean Hannity and Chris Wallace how his plan had been misconstrued, how he had nothing against hard-core conservatives, and how Crossroads had, in fact, sunk millions into Tea Party candidates the last go-round. Soft and pale, sheared of his usual swagger, Rove was the very picture of a man under siege.

Many Republicans, meanwhile, clucked their tongues and marveled at why Rove had chosen to kick the hornet's nest. As some strategists noted (mostly sotto voce), there are things in politics that you sometimes have to do but that you simply do not talk about. Mucking around in primaries is one of those things. Don't announce it, just do it-and for God's sake tread lightly, taking great care to work with local leaders and play nice with everyone. "It's tricky because any time an outside group goes into a state, their actions can boomerang, and by virtue of their targeting the [anti-establishment] candidate, that candidate can prevail," says Fleischer. "So it has to be done with delicacy. It has to be done smart. It has to be done in conjunction with state officials, otherwise it is doomed to fail." By so indelicately trumpeting his plans, Rove seemed to violate this basic precept. With just a bit more tact, political watchers note, he could have avoided this whole nasty fight.

But what if, for Rove, the fight was key to the strategy?

Arguably no Republican had a deeper post-election hole to climb out of than Rove. His personal brand was badly damaged by his triumphal forecasts last cycle, including an embarrassing election night that found him on Fox News disputing the network's decision to call the race for President Obama. More materially, American Crossroads and its sister organization, Crossroads GPS, failed to deliver. Big time. (Not only did Mitt Romney lose, so did six of the eight Senate horses they backed.) When the blame game began, Rove emerged as a chief whipping boy in media accounts and among apoplectic donors (prompting him to host a post-game damage-control conference call with his top money men and women). Even Donald Trump took a turn, tweeting, "Congrats to @KarlRove on blowing $400 million [this] cycle."

The recriminations game can be particularly brutal among donors, says a former Romney adviser. "Oftentimes donors elevate the guru consultant class to a higher level than they should," he observes. "They give too much credit for being the ultimate reason for why candidates win and too much blame for being the reason they lose."

Post-election, big Republican donors have been demanding answers as a condition of future support for various groups-and players in the money game report that there has been barking, profanity, and not-so-veiled threats. "I do think you had a lot of donors saying, 'You have to demonstrate you learned the lessons of the last campaign,'" says the Romney adviser. "Then they want to see measurable results toward that end. 'What are you doing to make sure you're not spending money the same old way?' "

Rove's donors were no exception to this trend, meaning he needed to do something to unruffle their feathers. Fast. "This is all about the donors," says another veteran strategist. And what better way to make a statement to donors than to formulate a brand-new strategy and splash it across the front page of the paper of record? Message: lessons learned. Course correction set. "This is a follow-the-shiny-ball strategy," the strategist argues. "It's smart to get donors focused on the future, focused on a new mission right away as opposed to waiting."

As for the backlash among purists, some political watchers assume this too is all part of the larger plan. How better to reassure anxious donors that their distaste for Akin-like candidates is shared than to poke a stick in the eye of the party's anti-establishment forces-and, for good measure, to do so in the newspaper that symbolizes all that hard-core conservatives despise? Rove isn't an idiot, Republicans point out. He may have simply calculated that it was worth the short-term beating in order to show his donors some love, and thus live to fight another day.

Most establishment Republicans seem confident that this skirmish will peter out soon enough. "While the rhetoric may be heated right now, it will calm down," insists Georgette Mosbacher, a finance co-chair of the Republican National Committee. The anti-establishment folks, of course, vehemently disagree. "The genie is out of the bottle," says Deace. "This thing will run its course. One side will win, and one side will lose."

Though himself hardly a font of anti-establishment sentiment, Ari Fleischer happens to agree. "The first shot hasn't even been fired yet," he says, asserting that the piece in the Times was just "the announcement of the first shot." Far from blowing over, he predicts, this fight "will accelerate the first time that ads are shown against a Tea Party candidate on behalf of another candidate."

Deace and his team have, in fact, vowed to make Rove pay for his insults. "Anybody that he supports is toast," says Deace. "Anybody Rove is attached to will get a scarlet letter. At this point a candidate would be better off getting Barack Obama's endorsement than Karl Rove's."

Already the Iowa Senate race is shaping up to be an early test of this grudge match. In the Times piece announcing the Conservative Victory Project, Rove's colleague Steve Law, president of American Crossroads, took specific aim at Rep. Steve King (R-Iowa), fretting that the mouthy conservative has a "Todd Akin problem" and warning that his history of intemperate statements would be "hung around his neck." King responded by taking up the purists' banner and framing his possible Senate run as a matter of principle: "If I would back up in front of Karl Rove's initiative, that would just empower him, and he would go on state after state, candidate after candidate."

Rove, meanwhile, is racing full speed ahead on all fronts. On February 15, he trekked up to Capitol Hill to deliver a lesson on messaging to House Republican leaders. American Crossroads came out swinging early-and hard-in the Kentucky Senate race, bashing actress Ashley Judd for even thinking about challenging Senate Republican Leader Mitch McConnell. (Beyond the leader's obvious VIP status, there is a personal element to this: Crossroads' Law once served as McConnell's chief of staff.) And Rove just keeps on talking about the Conservative Victory Project, as media outlets devote vastly more ink and airtime to the subject than it could have garnered without the attendant controversy.

Of course, Rove isn't the only one poised to benefit from this spectacle. Even as he pokes purists in an apparent effort to jumpstart his 2014 money machine, the purists are looking to fill their coffers by poking back. "They need their shiny ball strategy too," observes the veteran strategist. "Everybody is trying to raise money." And just like Rove, these groups play rough-at times a little too rough. Last week the Tea Party Patriots had to issue an apology for a help-us-fight-Karl-Rove fundraising plea that included a Photoshopped image of their target dressed as an SS officer. (An outside vendor took responsibility for the pic.)

You know it's been a rough run when members of your own party start comparing you with Nazis. But don't feel too sorry for Karl-or for those at war with him. As long as the dollars keep flowing in, both sides can walk away from this skirmish feeling like winners.