How the Government Misled the Supreme Court on Warrantless Wiretapping

By Jameel Jaffer, Patrick C. Toomey, The Nation

29 December 13

The Snowden revelations have vindicated The Nation and the ACLU. When will the government correct the record and stop the abuses?

arly in 2013, before Edward Snowden’s revelations, the Supreme Court turned aside a challenge by this magazine and other organizations to a 2008 law that permitted the National Security Agency to conduct dragnet surveillance of Americans’ international communications. The plaintiffs claimed that the law was unconstitutional, but the government argued that the plaintiffs lacked standing to pursue their challenge because they had failed to show that the law would be used to intercept their communications. In a 5-4 vote, the Court agreed with the government.

Over the past six months, we’ve learned a great deal about the way the NSA has been using and abusing its surveillance powers, including the powers that were at issue in the Supreme Court case, Clapper v. Amnesty. And we’ve learned something else as well: that the government’s representations to the Court were incomplete in some respects and altogether false in others.

The law that the plaintiffs challenged in Clapper, the FISA Amendments Act (FAA), authorizes mass acquisition of Americans’ international communications for foreign-intelligence purposes. It is the same law, we now know, the government relies on when it compels Google, Facebook and other companies to turn over customer e-mails, text and video chats, and photographs as part of the NSA’s PRISM program.

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