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

The Supreme Court has ruled that rights groups and journalists can' t challenge the govt’s warrantless surveillance program because they can’t prove they are targets of it.
 
 
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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. Amy Goodman was joined by the ACLU’s Jameel Jaffer, who argued the case before the Supreme Court.

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!

JAMEEL JAFFER: Thank you.

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.

 
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