Conservative Supreme Court Justices Scuttle Challenge to Warrantless Wiretaps
February 26, 2013 4:24 PM
"I am your judge, executioner, jury, executioner, jailer, and if necessary, your executioner." -Judge Dredd
While President Barack Obama (D) and the "conservative" majority of the Supreme Court of the United States -- Justices Antonin Scalia, John Roberts, Clarence Thomas, Anthony Kennedy, and Samuel Alito -- have at times disagreed, they hummed a happy tune of harmony on Tuesday, silencing the voices of the President’s "liberal" court colleagues. The conservative majority held ranks, voting 5-4 to
[PDF] a challenge to warrantless wiretaps.
I. Due Process? Not Always, Argues Supreme Court
Both President Obama and his Republican predecessor, President George W. Bush, argue that warrantless wiretaps are a critical tool to fighting the ever-present, nebulous threat of terrorism. They argue that in the
modern era due process is a defunct relic
that needs to be tossed aside to counter the grim face of modern reality.
[Image Source: Djibnet]
U.S. Federal Bureau of Investigation
National Security Agency
(NSA) both use warrantless wiretaps and
other warrantless information requests
to spy on Americans. The agencies have not published clear rules regarding when and how warrantless wiretaps are approved.
Normally the government needs a warrant to snoop on citizens, but now federal agents -- sometimes a single agent -- can arbitrarily file to monitors citizens’ communications.
II. Yet Another Lawsuit Fails to Halt Warrantless Police State
There have been numerous lawsuits against warrantless wiretaps by civil liberties groups, which argue that the Constitution should not be tossed aside in the name of fighting "terrorism". However, these lawsuits have virtually all failed. The government has additionally granted immunity from lawsuits to telecoms who cooperate with its shadowy, Orwellian tactics.
In the latest lawsuit, brought by
Amnesty International USA
, Judge Alito dealt critics a harsh blow, writing in the majority opinion "[The plaintiffs] cannot demonstrate that the future injury they purportedly fear is certainly impending."
The conservative majority tossed an anti-wiretapping case. [Image Source: Flickr]
Justice Stephen Breyer blasted Judge Alito and President Obama's rhetoric, commenting, "[The 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."
U.S. Department of Justice
Solicitor General Donald Verrilli
argues that citizens have nothing to worry about in losing their privacy if they have nothing to hide. He counters Amnesty International and
American Civil Liberties Union
(ACLU) criticism that the wiretaps could adversely affect journalists and lawyers by making them fearful of prosecution.
He argues, "[If a journalist or lawyer] took precautions, it would be because of a belief that (he or she) had to comply with an ethics rule, and the ethics rule would be the cause of (him or her) taking those precautions."
III. Bush, Obama, Romney, are All United on Warrantless Monitoring
Formally under the latest
FISA Amendments Act Reauthorization Act of 2012
(H.R. 5949) the government must suspect a U.S. citizen is talking with a foreigner in order to wiretap the conversation without warrant. Of course, such a claim could be made about virtually any conversation, as there's really no way of proving an agent didn't
be talking with a foreign citizen.
Marking the increasingly similar appearance of America's two ruling parties, both President Obama and his former presidential elections rival Mitt Romney supported warrantless wiretaps. Most Republicans (and Democrats) in Congress have also voted in favor of nullifying Constitutional protections and allowing the practice. Increasingly both parties are finding they have much more in common than they have to disagree about.
President Obama and his predecessor President Bush agree on many things, including that the federal government should be granted unregulated spying on its citizens.
[Image Source: WhiteHouse.gov]
Mr. Romney expressed a viewpoint narrowly in line with President Obama's plugging warrantless wiretaps in a recent interview (see below), stating, "If it means we have to go into a mosque to wiretap or a church, then that's exactly where we are gonna go, because we are going to do whatever it takes to protect the American people. And I hear from time to time people say, 'Hey, wait a sec, we have civil liberties to worry about', but don't forget... the most important civil liberty I expect from my government is my right to be kept alive."
In other words whoever won the White House, the outcome on warrantless wiretaps -- like many other issues -- was predetermined. The President would support the push to keep law enforcement activities unaccountable and unregulated. Both parties argue that citizens should just be happy the government is allowing them to live, as Mr. Romney puts it, by fighting "terrorism".
IV. Original FISA Aimed to Stop What Current Bill Does
The FISA mess, like many in the government is an interesting historical lesson in how the government can take what seems like a good idea and twist it to accomplish the exact thing that it was originally intended to prevent --
non-transparent and unaccountable wiretapping
The FISA was designed to eliminate Fourth Amendment violations, and was put in place in the wake of accusations that President Richard Nixon had used wiretaps to spy on political rivals. The act only allowed for warrantless wiretaps if one of the parties was "reasonably believed" to be outside the U.S.
The original FISA aimed to stop wanton warrantless wiretapping used by people like President Nixon to (allegedly) spy on his political enemies. [Image Source: DC Comics]
While well intentioned, perhaps the FISA left open the door to abuse by putting domestic surveillance mechanisms in place. While the bill criminalized abuse, with a penalty of up to five years in jail, it has been difficult to prove abuse allegations against ranking federal officials.
But for its flaws FISA did offer some protections for a while. But those protections were replaced with the precise thing the original measure was designed to block via the
PATRIOT Act of 2001
, which dramatically expanded warrantless wiretaps, and the
"Protect America Act"
of 2007 (
And now the best challenge to that ubiquitous surveillance has been struck down before the Supreme Court.
"When an individual makes a copy of a song for himself, I suppose we can say he stole a song." -- Sony BMG attorney Jennifer Pariser
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