There was only
one catch and that was Catch-22, which specified that a concern for
one's safety in the face of dangers that were real and immediate was
the process of a rational mind. Orr was crazy and could be grounded.
All he had to do was ask; and as soon as he did, he would no longer
be crazy and would have to fly more missions. Orr would be crazy to
fly more missions and sane if he didn't, but if he was sane, he had
to fly them. If he flew them, he was crazy and didn't have to; but
if he didn't want to, he was sane and had to. Yossarian was moved
very deeply by the absolute simplicity of this clause of Catch-22 and
let out a respectful whistle.
In 1978, Congress passed the Foreign
Intelligence Surveillance Act (FISA), which regulates intelligence
surveillance inside the United States. It required the government to
get a warrant from the FISA Court in order to monitor Americans'
communications with suspected terrorists living abroad. (In
practice, the FISA Court too often rubber stamped these government
requests.) Shortly after 9/11 President Bush began violating the act
by authorizing warrantless wiretaps of the telephone and email
conversations of American citizens. In 2008, Congress retroactively ratified Bush's illegal behavior by passing the FISA Amendments Act,
which expanded the Attorney General and the Director of National
Intelligence's ability to spy on international communications.
The 2008 amendment, specifically
§1881a, revised FISA in
two ways. The government is no longer required to demonstrate
probable cause that the target is an agent of a foreign power, and
the government is not required to specify in advance the
communications that will be spied upon. The Obama administration not
only continued the Bush policy of warrantless surveillance, but what indirect evidence we have suggests that it has been increased considerably.
As soon Bush signed the amendment, the ACLU challenged its constitutionality on behalf of a coalition of
lawyers, journalists, and human rights activists (Amnesty
International, et al v. Clapper).
The ACLU argued that it interfered with the First Amendment
guarantee of free speech and Fourth Amendment protection against
unreasonable searches and seizures. There is ample precedent to show
that the Fourth Amendment was specifically intended to prevent such
massive eavesdropping on persons not suspected of any crime.
In rebuttal to earlier charges of
illegal surveillance, the Bush Justice Department developed a
Catch-22 defense. In order to challenge a law, you must prove that
you have standing; that is, you must show that you have been harmed
by the law. This ordinarily good idea is intended to prevent
freelancers from contesting any law they happen to disagree with.
The Bush Administration argued that since the surveillance was
secret, no one could prove that they had been targeted. Therefore,
no one had standing to sue to overturn the law, and it could not be
challenged. This argument, now recycled by the Obama administration,
was unanimously rejected by the U. S. Court of Appeals, but the
Justice Department appealed their decision to the Supremes.
If the wiretaps are secret, how do you
know whether you have been victimized? There are some common sense
answers to this question. For example, if you are a lawyer who has
clients living abroad that are accused of terrorism, you can safely
assume your international calls are recorded. In fact, some of the
plaintiffs argued that they suffered the additional harm of having to
go to considerable expense and inconvenience in order to interview
their clients in person.
Yesterday, in a 5-4 decision, the five
more conservative Supremes dismissed the suit, ruling that the
plaintiffs had no standing to contest the law, and effectively
insulating it against any future challenge (unless the Obama
administration is foolish enough to try to use information gathered
under §1881a in court).
Justice Samuel Alito, writing for the majority, said the plaintiffs
had failed to show that the threatened harm was “certainly
impending.”
[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
. . .
The
four less conservative Supremes dissented. Justice Stephen Breyer said:
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 . . .
Breyer objected to Alito's “certainly
impending” standard. He pointed out that the court has often
granted standing to plaintiffs who predicted but could not prove that
they would be harmed by future events, as when homeowners are allowed
to sue to prevent future environmental damage to their property.
Glenn Greenwald summarized the decision
as follows:
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've recently been reading Seth
Rosenfeld's Subversives: The FBI's War on Student Radicals and
Reagan's Rise to Power, which is
about extensive surveillance of Americans engaged in peaceful
constutionally-protected protest, primarily against instutional
racism and our illegal invasion of Vietnam. It seems that we have
entered a new era of routine violations of constitutional rights.