This article was originally published on the People’s Blog for the Constitution.

Tuesday’s decision by the Supreme Court in Clapper vs Amnesty Int’l reflects judicial formalism at its worst. The decision abandons fundamental rights and the courts’ constitutional mandate, while placing government agencies above the law, so long as they commit their abuses in secret.

Clapper is a constitutional travesty of the highest order, reflecting the erosion of privacy, judicial independence, and constitutional government all at once. By allowing executive secrecy to insulate violations from review, five Justices of the Supreme Court have effectively killed what shreds once remained of the Fourth Amendment.

Every American should be gravely concerned, and anyone who still considers America “the land of the free” should carefully reconsider their assumptions. Several elements of the decision are disturbing, especially when viewed in a broader context beyond the case itself.

Most obviously disappointing is the result of the ruling, not only for the plaintiffs, but also anyone who uses the phone system or Internet.

A scandal in plain sight

The Clapper saga started with the Foreign Intelligence Surveillance Act, which was first passed in the 1970s to restrict domestic spying by government agencies. It was prompted by decades of abuses by the FBI, CIA, and other agencies that Congress investigated and found conducting “a sophisticated vigilante operation aimed squarely at suppressing the legitimate exercise of First Amendment rights of speech and association,” including a documented government campaign to “neutralize” Martin Luther King, Jr. and other civil rights leaders.

In 2002, the Bush administration authorized the National Security Agency (the NSA) to begin a secret warrantless wiretapping program in clear violation of the FISA law. It remained secret, at one point prompting a dramatic intra-executive showdown and threats of a mass resignation by Justice Department officials under the Bush administration, until the New York Times exposed the program in late 2005.

Aside from generating an earthquake across Washington, the first results of the Times‘ expose included government threats to prosecute the journalists. Their only “crime” was exposing the public to an issue that should never have been secret in the first place.  While prosecutors thankfully opted not to prosecute Lichtblau & Risen, others continued to face prosecution for pursuing transparency in the public interest.

In the middle of the 2008 presidential election race, Congress amended FISA to permit what the original statute had been passed to prohibit. Rather than require the agency to comply with the long-standing law, however, Congress instead watered down the law to allow the agency’s abuses to continue.

Congress’ 2008 amendments to FISA doomed oversight. As the dissenting Justices in Clapper observed, the 2008 amendments allow NSA monitoring not only of agents of a foreign power, but also law-abiding Americans. Congress in 2008 also removed FISA’s original requirement for the NSA to identify specific targets and locations for surveillance, enabling the agency to conduct bulk collection, or dragnet surveillance. Finally, the 2008 amendments subsidized corporate crime, extending a corporate subsidy in the form of immunity from lawsuits alleging privacy violations, ensuring that telecommunications companies could continue facilitating unconstitutional surveillance without fearing lawsuits from a justifiably hostile public.

That was the context in which a group of activists, journalists, and lawyers among the most likely suspects for NSA surveillance filed suit.

Closing the courthouse doors

Read the rest of this entry →

Yesterday, the Supreme Court heard arguments in US v. Jones, a case regarding police use of GPS tracking devices in criminal investigations. The case has dire Fourth Amendment implications.

In its decision, the Supreme Court will settle differences between rulings of two federal appeals courts. In one case, US v. Jones, the lower court overturned a conviction, saying that police use of GPS tracking devices without a warrant violated the Fourth Amendment. In the other, US v. Pineda-Moreno, a different court upheld a conviction based on evidence obtained from a GPS tracker placed on the suspect’s car while it was parked in his driveway, denying that he had an expectation of privacy there.

Ahead of the arguments, I spoke to Lawyers.com, explaining that the Pineda-Moreno ruling makes a

ridiculous class distinction. It means that if you have enough money to enclose your property with a fence, the police can’t enter because you have an expectation of privacy within your property. If you don’t have those resources, then police can come in and attach a GPS device to your car without any judicial checks or balances. The decision means the Fourth Amendment doesn’t apply equally to everyone.

But it’s not just the class issues that create problems, as I noted in that same piece:

Buttar fears that if the Court doesn’t look beyond the formalistic Fourth Amendment analysis, the government will gain the unbridled power to track anyone, anytime, anywhere, without any oversight. But, he says, if the Court instead considers the purposes of the First, Fourth, or Fourteenth Amendments – which include protecting rights of association, privacy, free exercise of religion, and racial & ethnic minorities – the outcome will be different.

It’s easy to see how GPS tracking helps law enforcement catch criminals. After all it helped win these two convictions. But Buttar claims that the benefit to the government of warrantless GPS tracking is “trivial when you consider how easy it is for law enforcement to get a warrant. Compare the vast investigatory powers police already have against the profound harm to privacy and associational rights in removing any judicial check on warrantless location tracking. In asserting this authority, our government is claiming police powers more like those in the Soviet Union or Communist China, well beyond the traditionally limited government powers on which we Americans, inspired by our Founders, have always insisted.”

We at the Bill of Rights Defense Committee will be monitoring developments in this crucial case and posting more information here at FDL and on our blog as it becomes available.

But while we wait for the Supreme Court to rule, there’s more we can do to protect rights in our individual communities. Join—or start!—a local civil rights restoration campaign in your city or town or check out other ways to get involved.