Catch-22

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.

                                                                 Joseph Heller, Catch-22 (1961)

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.